Durns v. U.S.

• Decision Date: 14 November 1977
• Docket Number: No. 77-1163,77-1163
• Citation: 562 F.2d 542
• Parties: 2 Fed. R. Evid. Serv. 462 Donald E. DURNS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 542

562 F.2d 542

2 Fed. R. Evid. Serv. 462

Donald E. DURNS, Appellant, v. UNITED STATES of America, Appellee.

No. 77-1163.

United States Court of Appeals Eighth Circuit.

Submitted May 16, 1977.

Decided Sept. 14, 1977.

Certiorari Denied Nov. 14, 1977.

See 98 S.Ct. 490.

David F. Williams, Kansas City, Mo., made argument, filed appearance and brief for appellant.

J. Whitfield Moody, First Asst. U. S. Atty., Kansas City, Mo. (argued and filed appearance), and Bert C. Hurn, U. S. Atty. (former), Kansas City, Mo., on brief for appellee.

Before STEPHENSON and WEBSTER, Circuit Judges, and BENSON, District Judge. ^*

BENSON, District Judge:

Donald E. Durns appeals from a judgment of conviction for violation of 18 U.S.C. § 1201, the federal kidnapping statute. He contends the trial court erred:

(1) in denying his motion for judgment of acquittal on grounds of insufficiency of the evidence to sustain the conviction for the offense charged;

(2) in failing to give the jury a requested lesser included offense instruction, and in failing to give an instruction on identity in the form requested;

(3) in admitting into evidence a tape recording of a telephone conversation and allowing the recording to be played to the jury;

(4) in admitting into evidence a revolver, a knife and certain articles of clothing;

(5) in admitting into evidence testimony relating to a prior act of the defendant similar to the offense charged.

A fair construction of appellant's specifications of error reveals that all, except the alleged error in failing to instruct on lesser included offense, relate to the issue of identity.

I. Facts.

The indictment under which appellant was convicted arose out of a series of events beginning on July 8, 1976. Around noon on that day, Ethel M. Tanquary of Overland Park, Kansas, parked her car near the Ward Parkway Shopping Center in Kansas City, Missouri. As she was getting out of her automobile, a man forced his way into the car, declaring that he was armed with a knife and a gun and announced a robbery. ¹ He took control of the car and drove, with Mrs. Tanquary in the car, several miles south to a gravel road, where he stopped to search Mrs. Tanquary's purse and remove rings from her fingers. Mrs. Tanquary signed a blank check for her abductor, who then placed tape over her eyes and tied her hands and feet.

From the gravel road the abductor drove to the Overland Park State Bank on Metcalf, located in Kansas, and attempted to cash the check signed by Mrs. Tanquary. The teller at the drive-in window of the bank refused to cash the check because of the amount. ² From the Overland Park State Bank the abductor drove back to the Ward Parkway Shopping Center, where he transferred his victim to another automobile. From the Ward Parkway Shopping Center he drove to an apartment in Kansas City, Missouri, where Mrs. Tanquary was held captive.

While Mrs. Tanquary was being held at the apartment, negotiations for her release were conducted between her abductor and her son, Edward Tanquary. Mr. Tanquary was first contacted at approximately 12:45 P.M. on July 8, the day his mother was kidnapped. At that time he was told where his mother's car was located, and was instructed to get together $22,000 cash in tens, twenties and fifties. The caller informed Mr. Tanquary that he would contact him again the following day at approximately 5:00 P.M. with further instructions.

After the initial phone conversation, Mr. Tanquary contacted his attorney, who in turn notified the Overland Park Police and the Federal Bureau of Investigation. Tanquary assembled the ransom money as instructed, and with two agents of the F.B.I. awaited further word from the caller at his mother's apartment. With Tanquary's permission, one of the F.B.I. agents installed a listening and recording device on the phone at his mother's apartment.

The next day, July 9, at approximately 5:00 P.M., Mr. Tanquary received instructions over the phone telling him where and when to drop the ransom money. The drop was made as instructed, and Mrs. Tanquary was released unharmed in Kansas City, Missouri, at approximately 8:30 P.M. on July 9. Around midnight that night, Appellant Durns was arrested at his apartment, and in a search of his person arresting authorities found a quantity of the ransom money, a knife and a wallet containing identification of Donald E. Durns.

A search of Durns' apartment ³ on July 10 turned up approximately $20,000 in ransom money as well as some bindings and tape used to restrain Mrs. Tanquary during her stay in the apartment, and a paper cup with lipstick smears later identified as having come from Mrs. Tanquary. The same day, July 10, the F.B.I. also recovered from Shirley Nicholi, an ex-girlfriend of Durns, a ring identified by Mrs. Tanquary as one taken from her during the kidnapping, a revolver and a quantity of the ransom money. Shirley Nicholi testified at trial that these items were given to her by Durns, although she was unable to identify the weapon. ⁴ A 1970 white over blue Dodge automobile was also recovered from behind Shirley Nicholi's residence, which was identified at trial as the one used in the kidnapping.

At trial, Mrs. Tanquary described her abductor in general terms as a white man between 45 and 50 years old, 5 feet 10 or 11 inches tall, weighing approximately 185 pounds, clean shaven, with dark hair, graying at the temples, and wearing dark rimmed glasses. She was unable to positively identify Durns as her abductor.

Testimony at trial included that of Janet Renick, who described an incident which occurred on June 28, 1976. Mrs. Renick testified that as she approached her car after shopping at the Prairie Village Shopping Center in Prairie Village, Kansas, an individual whom she identified as Durns was seated in a white over blue Dodge with a license number matching that of the Dodge found behind Shirley Nicholi's residence. The individual got out of his car, grabbed Mrs. Renick, held a gun to her head and announced a kidnapping. Mrs. Renick struggled with her assailant and was able to break free. Her assailant panicked, returned to his car and fled the scene.

II. Identity.

Appellant concedes, and the record is clear, that the statutory elements to establish the crime of kidnapping under 18 U.S.C. § 1201 were proven. ⁵ Appellant's argument is that the evidence is insufficient to establish that he committed the act.

On appellate review of the sufficiency of the evidence, the court must view the evidence in the light most favorable to the verdict rendered. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). It must accept as established any and all reasonable inferences from the evidence that tend to support the jury's verdict. United States v. Overshon, 494 F.2d 894, 896 (8th Cir.), cert. denied, 419 U.S. 853, 878, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974). The evidence need not "exclude every reasonable hypothesis except that of guilt (; it is enough) that it be sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty." United States v. Shahane, 517 F.2d 1173, 1177 (8th Cir.), cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 124 (1975). Furthermore, because circumstantial evidence is intrinsically as probative as direct evidence, Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954), the same standard applies where a conviction rests entirely on circumstantial evidence. United States v. Carlson, 547 F.2d 1346, 1360 (8th Cir. 1976).

The following circumstantial evidence presented by the prosecution at trial, when viewed under the applicable standards, is clearly sufficient to sustain the finding by the jury that it was Durns who committed the act:

(a) The vehicle used in the kidnapping, a 1970 Dodge, was owned by an ex-girlfriend of defendant, and the car was in Durns' possession during the period in which the kidnapping took place.

(b) The apartment in which the kidnap victim was held for nearly two days was leased to Durns.

(c) The bulk of the ransom money was recovered from Durns' apartment; part of the ransom money was recovered from Durns' person the night of the ransom transfer, and part was recovered the day following the transfer from his ex-girlfriend, Shirley Nicholi, the owner of the 1970 Dodge.

(d) The ring taken from the kidnap victim, a revolver found under the seat of the Dodge, a part of the ransom money, and the Dodge automobile were turned over to Shirley Nicholi by Durns.

(e) Durns was identified by a bank teller as the man who attempted to cash a $12,000 check in the drive-up window of Overland Park State Bank on July 8, 1976.

Our holding that the foregoing evidence relating to the issue of identity is sufficient to sustain the jury's determination on that issue, taken together with appellant's concession that the elements of the crime had been proven, renders the appellant's remaining specifications of error relating to identity, specifically 3, 4 and 5 as set out in this opinion, somewhat moot on that issue. We therefore need only consider whether admitting the evidence in question in those specifications was error, and, if error, whether it was prejudicial. United States v. Bartlett, 449 F.2d 700, 706 (8th Cir. 1971), cert. denied, 405 U.S. 932, 92 S.Ct. 990, 30 L.Ed.2d 808 (1972); Lowe v. United States, 389 F.2d 108, 112 (8th Cir.), cert. denied, 392 U.S. 912, 88 S.Ct. 2072, 20 L.Ed.2d 1371 (1968).

III. Tape Recording.

The telephone conversation recorded on tape and played to the jury was the July 9 call from the kidnapper to Edward Tanquary, giving him instructions for the ransom drop. Appellant challenges the admissibility of the recording, alleging the caller was not identified. He bases his challenge on United States v. McMillan, 508 F.2d 101 (8th Cir. 1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975), wherein this Court set out the foundational requirements for the admission of...