DeVault v. United States, 7736

• Decision Date: 16 November 1964
• Docket Number: No. 7736,7738.,7736
• Citation: 338 F.2d 179
• Parties: Richard Lee DeVAULT, William Lee Humphreys, and Donald Thompson, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

338 F.2d 179 (1964)

Richard Lee DeVAULT, William Lee Humphreys, and Donald Thompson, Appellants, v. UNITED STATES of America, Appellee.

Nos. 7736, 7738.

United States Court of Appeals Tenth Circuit.

November 16, 1964.

Roy Cook, Kansas City, Kan., for appellants.

Thomas E. Joyce, Asst. U. S. Atty. (Newell A. George, U. S. Atty., with him on the brief), for appellee.

Before PHILLIPS, PICKETT and SETH, Circuit Judges.

SETH, Circuit Judge.

The three appellants were convicted by a jury for a violation of the Mann Act, 18 U.S.C. § 2421, and have taken this appeal.

The record shows that appellants met with others at a playground in Kansas City, Kansas, and after some discussion it was agreed that they would have a party. It was also agreed that they go to Kansas City, Missouri, and pick up a girl who lived there and was known by one of the appellants. The appellants in one car, and the other defendants in another car, went to the house of the girl, and there picked up her and her sister. The record shows the group rode around in Missouri, made several stops, and then went to an abandoned quarry in Kansas where one of the girls was raped. The girls testified that they agreed to go only to a drive-in near their home, and when they were not taken there, repeatedly requested to be taken home, but the appellants refused to do so.

The appellants urge that the trial court committed several errors, including the denial of defendants' motion for severance, in requiring appellants to proceed at the trial in the order in which their names appeared on the information, and in further instructing the jury and requiring it to continue deliberations after reporting it could not agree. Appellants also urge that there was insufficient evidence upon which the jury could find appellants had the requisite intent.

There were seven defendants charged in the information, four of whom were acquitted. Six attorneys represented the accused at the trial. Each defendant moved for a severance, which was denied. The appellants assert that it was error for the trial court to refuse to grant each appellant a separate trial. They base their contentions primarily upon the fact that all but one of the seven defendants made statements to the investigating officers which, it was then apparent, would be introduced at the joint trial.

The record shows that one agent testified as to statements made to him by five of the defendants, and another agent testified as to the sixth statement. One written statement was introduced which was also testified to. In each instance the court admonished the jury at the time that the testimony as to the statements, and the one written statement, was hearsay as to all other defendants than the one making it and should not be considered as to any other defendant than the one who made the statement. Further, the trial court in its formal instructions to the jury referred specifically to these statements, and again stated that each was admissible only against the defendant making it and not admissible to implicate the others.

These statements in each instance describe the meeting of the appellants near a school in Kansas and their agreement to go to Kansas City, Missouri, to pick up some girls that appellant DeVault knew. The statements also describe the trip to the girls' house, the girls joining the group, various stops as the group drove around in one or two cars, and the final stop at the quarry in Kansas. The statements relate the arrival at the quarry, the gathering of the other men there and other cars, but do not relate any observation of, or participation in the molestation of the girls. The statements implicate other appellants to the extent they name those in the group, show them going from place to place, and the arrival at the quarry.

On several occasions, this court has considered the problems with which the trial court was faced in determining whether or not to grant separate trials to defendants jointly charged. In Baker v. United States, 329 F.2d 786 (10th Cir.), we held that the trial court's discretion was broad and its action would not be overturned unless a clear abuse of discretion was demonstrated. We also held that although one defendant may try to cast the blame on the others, this is not of itself reason to have separate trials. The authorities are collected and discussed in this cited case. The question is also considered in Maupin v. United States, 225 F.2d 680 (10th Cir.). Also in the recent case of Walton v. United States, 334 F.2d 343 (10th Cir.), the issue was presented. There two defendants moved for a severance because the confession of a third named them as the actual participants in a bank robbery in a clear and direct implication. We there reiterated the broad scope of the trial court's discretion and concluded that we were not prepared to say that the case was one in which the jury could not follow the court's instruction or that the court abused its discretion in denying the severance. The same statement may be made as to the case at bar. The trial court here was careful and clear in instructing the jury of the hearsay nature of the evidence as to all but the declarant, both at the time the statements were entered in evidence, and in its instructions before sending the jury out to deliberate. This was sufficient to meet an argument of prejudice. Gornick v. United States, 320 F.2d 325 (10th Cir.); Dennis v. United States, 302 F. 2d 5 (10th Cir.). In addition, the content of the statements themselves indicates that they did not directly implicate the others in the crime. The fact that these recitations of events may have been repeated in several statements does not make the cumulative effect of such a character as to render the trial court's ruling in error. The trial court did not abuse its discretion in denial of the...