United States v. Chapman, 71-2575. Summary Calendar.

• Decision Date: 08 February 1972
• Docket Number: No. 71-2575. Summary Calendar.,71-2575. Summary Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Don Garriga CHAPMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

455 F.2d 746 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Don Garriga CHAPMAN, Defendant-Appellant.

No. 71-2575. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

February 8, 1972.

COPYRIGHT MATERIAL OMITTED

Robert L. Stone, Pensacola, Fla. (Court Appointed), for defendant-appellant.

William H. Stafford, Jr., U. S. Atty., Pensacola, Fla., for plaintiff-appellee.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Don Garriga Chapman appeals from his judgment and sentence after jury trial for violation of Title 18, U.S.C., Section 751(a), escape from federal custody. At the time of the offense he had previously been convicted of and was serving a ten-year sentence at the United States Penitentiary, Atlanta, Georgia, for violation of Title 18, U.S.C., Section 2113(a), attempted bank robbery by force and violence. By virtue of a writ of habeas corpus ad prosequendum so as to permit his prosecution for another offense, Chapman was delivered to the United States Marshal for the Northern District of Florida and lodged in the Escambia County jail at Pensacola, Florida. He was in custody of the Northern District Marshal in Pensacola from February 14, 1971 until the time of the escape on April 17, 1971. On that date Chapman and a large group of other prisoners escaped from the Escambia County jail. He was not one of three prisoners who originally jumped a jailer and seized his keys, but was one of a larger group who were released by the original three and fled the jail after overpowering another deputy in the main lobby. Chapman's co-defendant Barfield in a federal court trial on April 9 for bank burglary was one of the original group. Chapman was arrested several days later by an F.B.I. agent when he left a Jacksonville, Florida motel where he was registered as Harold Jaffe. He had in his possession false identification and credit cards belonging to a "Harold Jaffe". At a post-arrest statement to the F.B.I. agents in Jacksonville, after receiving full Miranda warnings, Chapman acknowledged his identity and stated that he did leave the Escambia County jail on April 17 and that "all the prisoners bolted from the elevator when the doors opened". He made no indication in his statement that he left the Escambia County jail in any but a totally voluntary manner. He was returned to Pensacola where his conviction for escape followed.

At his trial Chapman defended on two grounds: (a) that he was forced by threats of great bodily harm made by other prisoners to join in the escape; and (b) that after the initial escape he remained at large because of fear of great bodily harm from Escambia County deputy sheriffs. He maintained that he never formed an intent to escape, and was in fact on his way to Atlanta to surrender himself when he was arrested by the Jacksonville F.B.I. agents.

On this appeal Chapman raises five issues, none of which appear to us to be meritorious and we accordingly affirm.

The first ground of claimed error is that the trial court should not have refused his request to require the production of two additional prisoners present during the escape to testify in support of his defense. It is clear from a reading of the record that production of these additional defense witnesses would have been merely cumulative and that the trial judge is not demonstrated to have abused the discretion committed to him under Rule 17(b), F.R.Crim.P. Seven other defense witnesses who were eye-witnesses to the escape were transported and maintained at federal expense. The testimony of the two witnesses, Anderson and Barfield, was cumulative and no necessity was shown for their being also transported to Pensacola and maintained at government expense during the trial. See our holding in Thompson v. United States, 5 Cir. 1967, 372 F.2d 826, 828; Taylor v. United States, 5 Cir. 1964, 329 F.2d 384, 386.

The next contention is that the trial court committed error in admitting government Exhibits 1, 2 and 3 into evidence. These exhibits were the judgment and commitment for the prior bank robbery offense with the Marshal's return on the reverse thereof, (Exhibit 1), the writ of habeas corpus ad prosequendum under which Chapman was held at Pensacola at the time of the escape, and the Marshal's returns thereon properly authenticated by the Chief Deputy Clerk of the court, (Exhibit 2), and an additional writ of habeas corpus ad prosequendum under which Chapman had been transferred to and returned from the Middle District of Florida to the Northern District of Florida, together with the returns thereon, (Exhibit 3), also authenticated by the testimony of the Chief Deputy Clerk. The three elements of the offense of escape are (a) that there was a conviction, (b) that there was an escape, and (c) that the escape was from a confinement arising by nature of the conviction. Hardwick v. United States, 9 Cir. 1969, 296 F.2d 24; Strickland v. United States, 10 Cir. 1965, 339 F.2d 866. Government Exhibits 1, 2 and 3 were properly received in proof of elements (a) and (c), supra, of the offense, pursuant to Rule 27, F.R.Crim.P., which states: "An official record or an entry therein or the lack of such a record or entry may be proved in the same manner as in civil actions". The exhibits were qualified for admission in evidence...