Tasby v. United States

• Decision Date: 17 December 1971
• Docket Number: No. 20357-20360.,20357-20360.
• Citation: 451 F.2d 394
• Parties: Johnnie TASBY, Appellant, v. UNITED STATES of America, Appellee. Booker T. BURKHALTER, Appellant, v. UNITED STATES of America, Appellee. Joe Willie FEGGETT, Appellant, v. UNITED STATES of America, Appellee. Paul Lawrence BRYANT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

451 F.2d 394 (1971)

Johnnie TASBY, Appellant, v. UNITED STATES of America, Appellee.

Booker T. BURKHALTER, Appellant, v. UNITED STATES of America, Appellee.

Joe Willie FEGGETT, Appellant, v. UNITED STATES of America, Appellee.

Paul Lawrence BRYANT, Appellant, v. UNITED STATES of America, Appellee.

Nos. 20357-20360.

United States Court of Appeals, Eighth Circuit.

November 11, 1971.

Rehearing Denied December 10, 1971.

Rehearing and Rehearing Denied December 17, 1971.

John B. Hainen, DeQueen, Ark., for Johnnie Tasby.

Paul Henry Kidd, Monroe, La., for Booker T. Burkhalter.

Howard Waldrop, Texarkana, Ark., for Joe Willie Feggett.

Royce S. Weisenberger, Jr., Texarkana, Ark., for Paul Lawrence Bryant.

James A. Gutensohn, Asst. U. S. Atty., Fort Smith, Ark., Bethel B. Larey, U. S. Atty., for appellee.

Before GIBSON, HEANEY and BRIGHT, Circuit Judges.

Rehearing Denied in No. 20358 December 10, 1971.

Rehearing and Rehearing En Banc Denied December 17, 1971.

BRIGHT, Circuit Judge.

On January 8, 1970, Johnnie Tasby, Booker T. Burkhalter, and Paul Lawrence Bryant broke into the Emmett Vickers home in rural Texarkana, Arkansas, and, at gun point, kidnapped fifteen year old Karen Vickers, who was at home with her mother. An accomplice, Joe Willie Feggett, waited outside in a getaway car. The four kidnappers took Karen across the Arkansas border into Texarkana, Texas, and held her, first in an apartment of defendant Hugh Mulzac Smith, and later in a Texarkana, Texas, motel room, subject to a $40,000 ransom demand. These five men subsequently stood trial before a jury in federal district court in Texarkana, Arkansas, on charges of interstate kidnapping in violation of 18 U.S.C. § 1201, interstate communication of a ransom demand in violation of 18 U.S.C. § 875, and conspiracy to engage in interstate kidnapping in violation of 18 U.S.C. § 371. The jury acquitted defendant Smith, but found the others guilty as charged. Judge Paul X. Williams thereupon imposed substantial sentences on defendants-appellants. Each appeals, raising a number of issues.

Tasby, Feggett, and Bryant assert that the trial court erred in failing to grant their pretrial motions for separate trials, and in refusing to order a change of venue to remove the adverse effect of extensive pretrial publicity. All of the defendants, except Tasby, challenge the voluntariness of confessions which they made to FBI investigators. In addition, Burkhalter and Feggett raise questions relating to the legality of their arrests. Feggett asserts that the trial court erred in refusing to grant a continuance. Tasby contests the denial of his motion for a new trial, alleging misconduct of the prosecutor. He also alleges that the trial judge committed other error in the conduct of the trial. Bryant, in a pro se presentation to this court, questions the adequacy of the representation which he has received from his counsel on this appeal. Finally, Burkhalter asserts that the trial court erred in admitting testimony of the sheriff which described the course of the investigation. We reject appellants' contentions and affirm their convictions.

The evidence established that the police rescued kidnapped Karen Vickers from the custody of appellant Bryant. An independent eye witness recognized appellant Tasby as one of a group of men taking Karen into defendant Smith's apartment in Texarkana, Texas. Law enforcement authorities traced the initial telephone call demanding ransom to a pay telephone located in the Harlem Inn, a bar in Texarkana, Arkansas. Appellant Burkhalter was identified as the person who had used that telephone at about the time that this initial ransom call was made. He was arrested at the Harlem Inn. Tasby and Feggett were arrested a short time later as they were leaving the Harlem Inn. Police released all three men the next day after defendant Smith telephoned a warning that Karen was in danger unless the three were set free. Smith, thereafter, was questioned by police and led them to the motel where Karen was being detained. Following the safe recovery of Karen and the arrest of Bryant and Smith, the police rearrested Burkhalter, Feggett, and Tasby. At trial, special agents of the FBI testified with regard to confessions which were made by each of the defendants. Tasby alone took the stand in his own behalf, and, while relating an incredible story suggesting complicity of Karen's father in the kidnapping, he strongly implicated each of the appellants in the kidnapping caper.

We turn first to the contention that the trial court erred in failing to order a venue change to another judicial district pursuant to Rule 21(a), Fed.R.Crim.P. Appellants assert that an underlying prejudice existed because the defendants, all blacks, were charged with kidnapping a white girl, which fact was aggravated by pervasive newspaper, radio, and television publicity concerning the crime and the apprehension of the defendants. At a pre-trial hearing on this issue, defendants introduced evidence of the news media coverage in the case, as well as testimony from several local citizens who felt that defendants could not obtain a fair trial in Texarkana, Arkansas.

In rejecting the motion for a change of venue, the trial court appropriately applied the test enunciated in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966):

* * * Where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. Id. at 363, 86 S.Ct. at 1522

In applying this test to the instant case, the trial court found that "the proof from all sources fails to show that there is any reasonable likelihood that the defendants or any of them will be deprived of a fair trial." Although the trial court possesses a broad range of discretion in this area, see, e. g., Koolish v. United States, 340 F.2d 513, 527-28 (8th Cir. 1965); Kilgore v. United States, 323 F.2d 369, 371 (8th Cir. 1963); Blumenfield v. United States, 284 F.2d 46, 51 (8th Cir. 1960), cert. denied, 365 U.S. 812, 81 S.Ct. 693, 5 L.Ed.2d 692 (1961), we are required to make an independent evaluation of the facts to determine whether the accused received a fair trial, unfettered by outside influences. Sheppard v. Maxwell, supra, 384 U.S. at 362, 86 S.Ct. 1507, 16 L.Ed.2d 600. In our review, however, we have the benefit of a completed trial record. The instant record demonstrates that the trial judge, as well as counsel for defendants, conducted a painstaking, meticulous voir dire of the prospective jurors. The court excused those who stated that they had formed an opinion as to the defendants' guilt. In addition, the trial judge granted defendants the privilege of exercising thirty-five peremptory challenges, as contrasted to the lesser number generally allowed under Rule 24(b), Fed.R.Crim.P. We believe that the qualifications possessed by the selected jurors exceeded the requirements for an impartial jury as articulated in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).¹ See Koolish v. United States, supra, 340 F.2d at 526-528. In the instant case, the jury selection procedure resulted in the seating of a biracial jury of eight whites and four blacks. In addition, the jury verdicts reflect some degree of discernment in assessing the evidence, since the jury acquitted defendant Smith, whose complicity in the crimes was more questionable than that of the appellants. The record also shows that the great bulk of the publicity consisted of straight news reporting, which occurred nearly two months before trial. See United States ex rel. Rosenberg v. Mancusi, 445 F.2d 613, 617-18 (2d Cir. 1971). From our independent review of the facts, we are convinced of the correctness of the trial court's ruling on this issue.

We turn next to a discussion of the Bruton² issue and the contention of appellants, except Tasby, that the trial court erred in denying the pretrial motions for severance. Bruton requires a separate trial of joint defendants where "powerfully incriminating extrajudicial statements of a codefendant will be deliberately spread before the jury in the event of a joint trial." 391 U.S. at 135-136, 88 S.Ct. at 1628. On the record presented in this case, we deem the Bruton holding inapplicable. Here, after proper testimonial foundation concerning voluntariness, the trial court admitted testimony by FBI agents of the in-custody confessions made by each of the defendants. These witnesses, for the most part, avoided any specific identification of the confessor's accomplices. By thus avoiding identification of codefendants, this testimony did not violate the Bruton rule. See United States v. Fountain, 449 F.2d 629 (8th Cir., Sept. 28, 1971), and cases cited therein. Appellant Burkhalter's confession, however, may have implicated Bryant by making reference to the fact that one accomplice had a noticeable eye defect. Only defendant Bryant had such a defect. Law enforcement officers, however, had arrested Bryant during his actual participation in the crime. Under these circumstances, the indirect identification of Bryant is harmless error. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (19...