472 F.2d 1153 (8th Cir. 1973), 72-1434, McDonnell v. United States

Docket Nº:72-1434.
Citation:472 F.2d 1153
Party Name:Robert Owen McDONNELL, Appellant, v. UNITED STATES of America, Appellee.
Case Date:February 05, 1973
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1153

472 F.2d 1153 (8th Cir. 1973)

Robert Owen McDONNELL, Appellant,

v.

UNITED STATES of America, Appellee.

No. 72-1434.

United States Court of Appeals, Eighth Circuit.

February 5, 1973

Submitted Dec. 7, 1972.

Page 1154

Charles Thompson, Pierre, S. D., for appellant.

David R. Gienapp, Asst. U. S. Atty., Sioux Falls, S. D., for appellee.

Before MEHAFFY, BRIGHT and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

The defendant, Robert Owen McDonnell, was convicted of breaking and entering the Farmers State Bank of Mellette, South Dakota, with intent to commit larceny in violation of 18 U.S.C. § 2113(a). This Court reversed and remanded a previous conviction of the defendant on the same charge. McDonnell v. United States, 455 F.2d 91 (CA8 1972).

The Farmers State Bank of Mellette was burglarized on May 18, 1969. On May 21, 1969 the defendant, Danny Ward, and Clarence Byrd were apprehended in Merriman, Nebraska in the commission of a burglary. On September 5, 1969, McDonnell was charged in United States District Court in Nebraska with entry and attempt at entry of the Bank of Brady, Nebraska. The defendant filed a motion to suppress certain evidence taken in a search of a 1968 Plymouth car, the keys to which were found in McDonnell's possession. Before a final adjudication of the motion to suppress, the Government dismissed the Nebraska indictment. McDonnell was then indicted in U.S.D.C. of South Dakota on February 11, 1970. A similar motion to suppress the evidence taken from the 1968 Plymouth car was denied.

At McDonnell's first trial, Danny Ward testified on behalf of the Government to the effect that he, Byrd, and McDonnell all participated in the burglary at Mellette. On cross-examination he stated that he couldn't state for certain that McDonnell was with him during the Mellette burglary. The defendant was convicted on February 18, 1971, but this court reversed and remanded the case for re-trial on February 16, 1972 on other grounds. McDonnell v. United States, 455 F.2d 91 (CA8 1972).

At the second trial of McDonnell, Danny Ward was again called to testify. This time, however, the witness was evasive and testified that his memory relating to most of the facts of the Mellette burglary had left him. Ward testified that he told the truth at the time of the first trial but that he did not now have any personal recollection as to what occurred in Mellette. Danny Ward's direct examination and cross-examination at the previous trial were then read to the jury. This testimony tended to incriminate McDonnell. McDonnell was convicted June 29, 1972 of the same charge and received a sentence of eighteen years. This appeal followed denial of motions for a new trial and for judgment of acquittal.

McDonnell bases his appeal on five different arguments:

1. That the court committed error by allowing the prior testimony of Danny Ward to be read into evidence at trial.

Page 1155

2. The Court erred in not giving the "mere presence" instruction as requested by the defendant.

3. The Court erred in not continuing the trial...

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