U.S. v. Davis

• Decision Date: 03 March 1986
• Docket Number: No. 85-1397,85-1397
• Citation: 785 F.2d 610
• Parties: UNITED STATES of America, Appellee, v. Kenneth Huie DAVIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 610

785 F.2d 610

UNITED STATES of America, Appellee, v. Kenneth Huie DAVIS, Appellant.

No. 85-1397.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 14, 1985.

Decided March 3, 1986.

Q. Byrum Hurst, Jr., Hot Springs, Ark., for appellant.

Steven Snyder, Asst. U.S. Atty., Fort Smith, Ark., for appellee.

Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

HENLEY, Senior Circuit Judge.

Kenneth Huie Davis appeals from his conviction for rape under 18 U.S.C. Sec. 2031 for which he received a fifteen year sentence. On appeal he argues that the district court ¹ erred in (1) failing to dismiss the indictment because of Speedy Trial Act and equal protection violations; (2) allowing into evidence an improper photographic lineup and the fact that there had been previous trials on the same charge; (3) transferring the trial; (4) making prejudicial comments; and (5) denying his motions for a new trial and a judgment of acquittal. He also contends that his conviction should be reversed due to his allegedly unlawful arrest. We affirm.

BACKGROUND.

Davis was convicted of raping Mary Cammack Hanks in Hot Springs National Park on Saturday, April 21, 1984. According to the victim's testimony the rape occurred as follows. While she was walking into Hot Springs, Arkansas late in the afternoon or early evening, appellant stopped and offered her a ride, which she accepted. He soon left the main road into town, explaining that he wished to avoid the heavy racetrack traffic. ² When he pulled off the road and stopped Hanks told him that she had a pocketknife to which he responded that he had a gun. At this point she ran out of the truck. He chased her and there was a struggle, during which she stated she was sixteen and menstruating. Davis answered that he did not care and took her pocketknife and threw it into the woods, telling her that she "could do it [in the woods] or in the truck." Then, after pushing her into the truck and backing it up into another area where she was allowed to remove her tampon, Davis had intercourse with Hanks in his truck.

Afterward, Davis drove Hanks into Hot Springs. At approximately 8:00 o'clock that evening she reported the incident to the Garland County Sheriff's office describing Davis, his truck and his license plate number. She was examined at an emergency room and semen was found in her vaginal washings and panties.

A check of the license plate number given by Hanks revealed that the truck belonged to Davis whose home was listed as Amity, Arkansas, which is in Clark County. At the request of Garland County, the Clark County Sheriff's office took Davis into custody at 9:30 p.m. at the doorway to his residence, and transported him to Garland County. There, a photograph was taken of him and placed into a photographic display, consisting of six photographs from which Hanks identified him as her attacker. Still later semen was found in the underwear Davis was wearing when arrested.

Upon visiting the scene of the crime with Hanks the police determined that the rape took place within the boundaries of Hot Springs National Park. The Park Service was notified and shortly before midnight Ranger Mark Harvey took responsibility for Davis' detention. On Sunday, April 22, 1984, park rangers found a tampon and pocketknife near the scene of the crime. Davis was released on Monday morning.

Davis denies ever having seen or raped Hanks. He testified that he had been at the races and took a different road home than the one on which Hanks said she was raped.

Appellant was indicted by a grand jury on June 13, 1984 and was tried on October 17, 1984 in the Hot Springs Division of the United States District Court for the Western District of Arkansas. This trial ended in a mistrial due to a hung jury as did a second trial held on December 3, 1984. The third trial which was transferred to the El Dorado Division was held on February 11, 1985, and ended in a conviction.

Appellant moved for a judgment of acquittal and for a new trial, in part claiming that his right to a fair trial had been denied because the government did not disclose evidence that the victim had gonorrhea at the time of the alleged rape.

DISCUSSION.

(1) Speedy Trial Issue. Appellant argues that his indictment should have been dismissed because he was arrested on April 21, 1984 and not indicted until June 13, 1984 in violation of the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. This act requires:

Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges. If an individual has been charged with a felony in a district in which no grand jury has been in session during such thirty-day period, the period of time for filing of the indictment shall be extended an additional thirty days.

18 U.S.C. Sec. 3161(b).

Davis' argument fails for two reasons. First, the government alleged at trial that no grand jury sat during the first thirty days after Davis' arrest, and therefore the time for filing an indictment was extended an additional thirty days. Davis offered no evidence to rebut this allegation. ³

Second, Davis' arrest was not the type to start the running of the speedy trial clock. Title 18 U.S.C. Sec. 3162(a)(1) provides for dismissal of an indictment for a speedy trial violation only "in the case of any individual against whom a complaint is filed charging such individual with an offense...." This appears to create a gap between the coverage of Sec. 3161(b) which begins with an arrest and Sec. 3162(a)(1) which starts with a formal charge. However, it does not cause a conflict as our court has determined that an arrest under Sec. 3161(b) means a formal arrest, such as when a complaint, information or indictment has been filed. United States v. Boles, 684 F.2d 534, 535 (8th Cir.1982); United States v. Solomon, 679 F.2d 1246, 1252 (8th Cir.1982); United States v. Jones, 676 F.2d 327, 331 (8th Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 71, 74 L.Ed.2d 71 (1982).

Here, Davis was not brought before a magistrate, formally charged by complaint or held in custody pending the filing of formal charges. Therefore, we hold that the district court was correct in not dismissing the indictment.

(2) Equal Protection Issue. Davis next argues that his indictment should be dismissed because 18 U.S.C. Sec. 2031, as it has been defined, singles out males for punishment thereby creating an illegal classification based on sex and violating his constitutional right to equal protection under the laws.

Although in light of the gender neutral wording of Sec. 2031, ⁴ a broader definition of rape at least arguably may be appropriate, rape in the federal system has been defined as "carnal knowledge of a female by force or threat of force." United States v. Smith, 574 F.2d 988, 990 (9th Cir.), cert. denied, 439 U.S. 852, 99 S.Ct. 158, 58 L.Ed.2d 156 (1978). However, this is not critical to our analysis because forcible rape statutes which are not gender neutral have been upheld as not violating equal protection rights. See Country v. Parratt, 684 F.2d 588, 593 (8th Cir.), cert. denied, 459 U.S. 1043, 103 S.Ct. 461, 74 L.Ed.2d 612 (1982); Hall v. McKenzie, 575 F.2d 481, 484-85 (4th Cir.1978); Moore v. Cowan, 560 F.2d 1298, 1303 (6th Cir.1977), cert. denied, 435 U.S. 929, 98 S.Ct. 1500, 55 L.Ed.2d 525 and 436 U.S. 960, 98 S.Ct. 3079, 57 L.Ed.2d 1127 (1978).

Generally, statutes which are not gender neutral have been upheld if the classification serves important governmental interests and the means used are substantially related to achieving those interests. See Mississippi University for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 (1982). Such statutes are valid "where the gender classification is not invidious, but rather reflects the fact that the sexes are not similarly situated in certain circumstances." Michael M v. Superior Court of Sonoma County, 450 U.S. 464, 469, 101 S.Ct. 1200, 1204, 67 L.Ed.2d 437 (1981).

Our court in Country v. Parratt upheld a Nebraska forcible rape statute, Neb.Rev.Stat. Sec. 28-408 (1964) (repealed 1977), under which only a male could be convicted for carnal knowledge of a female by force. 684 F.2d at 591. In that case, we first analyzed the Nebraska criminal code as a whole. Id. Since there were other code sections punishing other types of sexual assaults, we determined that the issue was whether a separate offense based on gender could be created punishing men who sexually assault women, more severely than other assailants in similar criminal contexts. Id.

In Country v. Parratt, we found that the legislative purpose "to deter men from physically and emotionally injuring women," was discernible from the statute. Id. at 592. We further determined that the statute's heightened sanction was substantially related to the government's purpose because a male attacker could impose a distinct type of harm on the female victim, the fear of an unwanted pregnancy and its physical, emotional, ethical and financial consequences. Id.

We conclude that the Country v. Parratt analysis applies equally well here. In analyzing the federal criminal code we find that, as in Nebraska, other types of sexual assault may be punished under other sections. See, e.g., 18 U.S.C. Sec. 113. Also, we believe a similar legislative purpose can be discerned from the statute and is likewise substantially related to the statute's sanction. Therefore, Davis' equal protection rights were not violated by any sex classification used in Sec. 2031.

(3) Photographic Lineup Issue. Davis argues that it was error to admit evidence of a photographic lineup at which the victim identified him as her attacker because his arrest was unlawful and the lineup was improperly conducted.

Davis points out that under 16 U.S.C. Sec....