U.S. v. Authement

• Decision Date: 05 December 1979
• Docket Number: No. 79-5201,79-5201
• Citation: 607 F.2d 1129
• Parties: 5 Fed. R. Evid. Serv. 387 UNITED STATES of America, Plaintiff-Appellee, v. Richard AUTHEMENT, Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1129

607 F.2d 1129

5 Fed. R. Evid. Serv. 387

UNITED STATES of America, Plaintiff-Appellee, v. Richard AUTHEMENT, Defendant-Appellant.

No. 79-5201

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

Dec. 5, 1979.

Daniel J. Markey, Jr., New Orleans, La., for defendant-appellant.

John Bilyeu Oakley, Walter W. Barnett, Drew S. Days, III, Asst. Attys. Gen., Civil Rights Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before AINSWORTH, FAY and RANDALL, Circuit Judges.

PER CURIAM:

The appellant, Richard Authement, a former Houma, Louisiana police officer, appeals his jury conviction for willful deprivation of the civil rights of Cecil Weldon Robbins, a burglary suspect, under color of law in violation of 18 U.S.C. § 242.

Authement and codefendant Duplantis were among several police officers who answered a burglary call at the Houma Greyhound Bus Station in the early morning hours of June 25, 1978. Robbins was ordered out of the building by the police officers and arrested. The Government alleged that Robbins was then shoved down on the pavement, beaten and kicked by Authement and Duplantis. Robbins could not positively identify which officers committed this initial assault, but one of Authement's fellow officers who was present that morning testified that Duplantis either kicked or kneed Robbins while he was in a prone position on the ground and that Authement hit Robbins' head on the cement several times. Robbins was then handcuffed and put in the back seat of a patrol car. Authement opened the right rear door of the car, ordered Robbins to move over and, according to Robbins, jabbed Robbins several times with a nightstick. Robbins was then taken to the police station, the handcuffs were removed, and he was left alone in a small room. Robbins testified that Authement entered the room wearing a set of brass knuckles and threatened to use them if Robbins did not cooperate. Authement then struck Robbins in the chest with the brass knuckles, knocking him into a nearby chair. In addition, Robbins testified that one of the police officers whom he could not identify stomped on his bare feet; one of the police officers who testified at trial identified Duplantis as the officer who stomped on Robbins' toes.

Robbins was booked for burglary and resisting arrest, but the resisting arrest charge was later dropped. The next day he sought medical treatment and was hospitalized for eleven days. He was suffering from facial abrasions and contusions, a fracture on the bone underneath the left eye, and bruised kidneys. Hospital photographs of Robbins' injuries were admitted into evidence over objection.

Authement gave the brass knuckles and his nightstick to his attorney, Daniel Markey. The Government served a subpoena Duces tecum on Markey demanding production of the two items. Authement moved to quash the subpoena, contending Inter alia that production would violate the attorney-client privilege and his fifth amendment privilege against compelled self-incrimination. After a hearing, the magistrate recommended quashing the subpoena, but the district court denied the motion. Markey produced the requested items. Only the brass knuckles were introduced into evidence.

Authement was acquitted on Count One (the bus station assault), and was convicted on Count Two (the assault with the nightstick in the patrol car) and Count Three (the assault with the brass knuckles in the police station). Duplantis was acquitted on Count One and convicted on Count Three. He was not charged in Count Two.

Authement raises two issues on appeal. First, Authement argues that the photographs of Robbins' injuries should not have been admitted into evidence at trial because they were irrelevant and unfairly prejudicial. Second, he argues that the subpoena Duces tecum by which the brass knuckles were obtained from his attorney should have been quashed, and that the district court erred by admitting the brass knuckles obtained thereby into evidence. We find no error in the trial and accordingly affirm.

THE PHOTOGRAPHS

Authement contends that because there was some testimony concerning alternative ways by which Robbins could have sustained his injuries and because Robbins could not identify which defendant, if any, caused each injury and how each was caused, the photographs were irrelevant. According to the Federal Rules of Evidence, " '(r)elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination Authement argues that the photographs, even if relevant, should have been excluded under Federal Rule 403 as highly prejudicial. Under Rule 403, a Judge may exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice." This balancing determination by the trial court is reversible error only if it amounts to an abuse of discretion. United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979); United States v. Kaiser, 545 F.2d 467, 476 (5th Cir. 1977). In light of the relatively mild nature of these photographs, we can discern very little danger of a jury verdict based on an emotional reaction to them. If any such danger was present, it certainly did not Substantially outweigh the probative value of the photographs. The trial judge did not abuse his broad discretion in admitting them.

of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. The indictment charged Authement and Duplantis with beating and assaulting Robbins. Because the Government claimed and Robbins testified that the beatings resulted in injuries which sent him to the hospital, his injuries and their severity were facts of consequence to the trial. Whether the photographs were irrelevant to another issue for example, how his injuries were sustained or by whom they were inflicted is not important, because they tended to show that injuries were sustained and document their severity.

THE BRASS KNUCKLES

Authement argues that the trial court erred in ordering production of a pair of brass knuckles by subpoena Duces tecum directed to his attorney, Daniel Markey. The grand jury indicted Authement on December 28, 1978. On January 18, 1979, a subpoena Duces tecum was served on Authement's counsel. The subpoena ordered Markey to bring the following items to the trial:

"a) The black wooden or nylon night stick that former Houma Police Officer Richard Authement was carrying on the morning of June 25, 1978.

b) The brass or metal knuckles that former Houma Police Officer Richard Authement had in his possession on the morning of June 25, 1978."

Authement moved to quash the subpoena, arguing that its issuance was in violation of Fed.R.Crim.P. 16(b), his attorney-client privilege, and his fifth amendment right against compelled...