U.S. v. LeBlanc, 78-5485

• Decision Date: 01 April 1980
• Docket Number: No. 78-5485,78-5485
• Citation: 612 F.2d 1012
• Parties: 5 Fed. R. Evid. Serv. 656 UNITED STATES of America, Plaintiff-Appellee, v. Tyrone LeBLANC, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1012

612 F.2d 1012

5 Fed. R. Evid. Serv. 656

UNITED STATES of America, Plaintiff-Appellee, v. Tyrone LeBLANC, Defendant-Appellant.

No. 78-5485.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 1, 1979.

Decided Jan. 8, 1980.

Rehearing and Rehearing En Banc Denied April 1, 1980.

Gershwin A. Drain, F. Randall Karfonta, Kenneth S. Sasse, Detroit, Mich., for defendant-appellant.

James K. Robinson, U. S. Atty., William J. Richards, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee.

Before ENGEL and MERRITT, Circuit Judges, and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

Tyrone LeBlanc and his codefendant, Alan Vester Clinscales, were jointly indicted, each on two counts charging them with two armed bank robberies, in violation of 18 U.S.C., Sec. 2113(a)(d). The first robbery was on August 18, 1977, at the Madison National Bank in Madison Heights, Michigan. A month later, on September 19, 1977, the Warren Bank in Warren, Michigan, was robbed of $114,000. The defendants were tried jointly to a jury and both were convicted on both counts of the indictment.

This is the appeal of LeBlanc from that conviction. The first issue in that appeal involves a procedural question which arose on the first day of trial, in the following manner.

"(Defense Counsel): Your Honor, if the court please, I have a similar motion, (the co-defendant had already made a motion) and I won't make any extensive argument with respect to that.

"I think the court knows the law and the applicable rules. I would only indicate to the court that I have been provided with a rap sheet from Mr. Richards which indicates that my client, Tyrone LeBlanc, has a 1976 charge of larceny from a building, that there is an entry for a conviction of 9/29/76.

"I would further indicate to the court that the defendant was placed on one-year's probation and was given Y.T.A. status, the standard youthful trainee status. And as I understand it, your Honor, it's a situation where a defendant is placed on probation for one year, and at the end of the year, the conviction is set aside.

"As I understand it also, the disposition can occur in one of two ways. Some judges don't require a guilty plea, and I have heard that on occasion, a judge may require a guilty plea and just set it aside.

"In this particular case, I am not I don't think Mr. LeBlanc really recalls exactly what happened, whether he actually went in court and tendered a guilty plea or whether he was just placed on probation. The Y.T.A. status is clearly indicated on the rap sheet, and I would submit to the court that as a result of that, the conviction would not be admissible. I don't think from this rap sheet the government can say that a guilty plea was tendered to the court that accepted this Y.T.A. status.

"For that reason, I would ask the court not to permit the government to use that larceny conviction of 1976."

There was argument from the Prosecuting Attorney and the Judge ruled, "Very Well. The ruling of the court is that the '76 larceny conviction may be used for impeachment purposes."

It is claimed on behalf of the appellant that this was error and required him to face a dilemma whether or not he should testify in his own behalf because of the likelihood that cross examination of a prior conviction would cast doubt about the credibility of his testimony.

The government now concedes that the trial judge's ruling was in error. The appellant's assignment to "youthful trainee" status was made pursuant to the Holmes Youthful Trainee Act, Mich.Comp.L.Ann., Section 762.11, Et seq. Such an assignment does not constitute conviction of a crime within the meaning of Rule 609, Federal Rules of Evidence. Accordingly, under Rule 609, appellant's assignment to youthful trainee status under Michigan law would not be admissible for impeachment purposes as a conviction.

The question before us is whether, under the state of the record, counsel for defendant has preserved his right to predicate error on the trial judge's ruling.

Rule 103, Federal Rules of Evidence, provides:

"(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

"(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record "(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked."

stating the specific ground of objection, if the specific ground was not apparent from the context; or

In addition to the above Rule of Evidence, Rule 51, Federal Rules of Criminal Procedure, requires a defendant to make "known to the (trial) court the action which he desires the court to take or his objection to the action of the court and the grounds therefor." In addition, case authority supports the proposition that a defendant must "object with that reasonable degree of specificity which would have adequately apprised the trial court of the true basis for his objection * * * " United States v. Fendley, 522 F.2d 181, 186 (5th Cir. 1975). See also United States v. Bryant, 480 F.2d 785, 792 (2nd Cir. 1973). Likewise, courts have held that error is not preserved for appellate review when appellant's objection was " 'too loosely formulated and imprecise' to apprise the trial court of the legal grounds for his complaint." United States v. Arteaga Limones, 529 F.2d 1183, 1199 (5th Cir. 1976), Cert. den., 429 U.S. 920, 97 S.Ct. 315, 50 L.Ed.2d 286 (1976).

With these considerations in mind, it is seen that while possibly the trial judge should have been able to interpret from the statements counsel made in support of his motion that under Michigan law the larceny in which the appellant was involved did not constitute a conviction, counsel did not clearly indicate the point of his motion that the disposition was an adjudication not resulting in a conviction. In addition, he used the word "conviction" four times and there is a question whether he, himself, understood the significance of the Michigan statute.

It is noted that, when the trial reached the stage of case in chief for appellant LeBlanc, counsel did not renew his motion to deny the right of the prosecutor to cross-examine on the larceny offense under Michigan state law. Neither did he advise the trial judge that his client would not testify on his own behalf because of his ruling on the motion of appellant at the opening of the trial. Nor did he offer the substance of the appellant's testimony in the event that he had testified. See Rule 103(a)(2), Fed.R.Evid. Instead, he stated only that,

"Your Honor, if the court please, on behalf of (defendant), I think we have decided not to present any evidence and would also rest at this time."

Under these circumstances, this Court cannot assume that it was the judge's ruling in question which prevented the appellant from testifying in his own behalf, ¹ or that, absent at least a proffer of appellant's proposed testimony, prejudicial error ensued. This is true, especially since the record indicates other tactical reasons why a decision not to testify might have been made.

For example, Jerome Belton, who is alleged to have entered the robbed banks with Clinscales, appellant's co-defendant, testified in the government's case that the appellant was the get-away driver in the two robberies charged in the indictment. He also involved the appellant as being in on the planning of the robberies with him and Clinscales. Belton's testimony was the only direct testimony connecting the appellant in the robberies.

Belton had been separately indicted. He bargained for a plea prior to the time of the trial in this case. Accordingly, he was permitted to plead to one robbery, and was assured that his sentence would not exceed six years and that the charge on one robbery would be dismissed. This was all brought out in the government's case and would naturally subject the witness's testimony to a credibility test. If the jury did not believe his testimony, LeBlanc probably could not have been convicted. It seems We conclude that counsel for appellant did not preserve his right to predicate error upon the trial judge's ruling and that, under a strict application of Rule 103, no substantial right of the appellant was shown to be affected.

rather obvious that LeBlanc would not want to subject himself to a cross examination of Belton's testimony. In addition, he may have feared the effect of cross examination on the source of the $10,000 in cash which the record indicates he paid for a new automobile, shortly after the second robbery.

Another claim of error on behalf of appellant LeBlanc is predicated on Rule 801(d)(1)(B), Federal Rules of Evidence, and the interpretation of that rule in United States v. Quinto, 582 F.2d 224 (2nd Cir. 1978). With regard to this issue, appellant argues that the trial judge erred in permitting the government to use prior consistent statements of the witness Belton on re-direct examination.

The record indicates that, on the day of his arrest, November 7, 1977, Belton was questioned for several hours on the two bank robberies involved in the indictment herein and particularly in an effort to get him to implicate LeBlanc. The two signed statements at issue were made on the day of arrest and before Belton had entered into bargaining for a plea of guilty. The text of these two statements is reproduced and attached as an appendix to this opinion.

Counsel for the appellant cross examined Belton at great length. He brought out testimony from Belton that the officers threatened to prosecute his brother and made promises to him that, if he would implicate LeBlanc, they would release the brother. The following is an excerpt from the record:

Q. "And is that when you implicated Tyrone as the driver in the case?...