Dyson v. United States

• Decision Date: 02 December 1960
• Docket Number: No. 16697.,16697.
• Citation: 283 F.2d 636
• Parties: Berry Anderson DYSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

283 F.2d 636 (1960)

Berry Anderson DYSON, Appellant, v. UNITED STATES of America, Appellee.

No. 16697.

United States Court of Appeals Ninth Circuit.

September 26, 1960.

Rehearing Denied December 2, 1960.

Berry A. Dyson, in pro. per.

Laughlin E. Waters, U. S. Atty., Robert J. Jensen, Bruce A. Bevan, Jr., Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before BARNES and MERRILL, Circuit Judges, and BOWEN, District Judge.

BOWEN, District Judge.

Pursuant to § 2113(a), Title 18 U.S.C., appellant was indicted, tried and convicted by a jury, and was, by the United States District Court for the Southern District of California, Central Division, in which he was tried, sentenced to ten years imprisonment for a Los Angeles national bank robbery occurring on May 4, 1959. This appeal from that final decision and action by the District Court is within the jurisdiction of this Court. § 1291, Title 28 U.S.C.

Upon this appeal from that conviction and sentence, appellant here in effect assigns two notable errors: (1) that the Trial Court erred in instructing the jury that when as appellant did in this case a defendant in a criminal case voluntarily testifies to material facts concerning his guilt or innocence of the charge against him as a witness in his own behalf and fails to deny or explain incriminating facts already in evidence, such failure may be commented upon by the prosecution adversely to the defendant and may be considered by the jury, and (2) that the Trial Court erred in failing to exclude appellant's oral confession.

Respecting the first assigned error, as to a defendant in a criminal case not being required to be a witness against himself and as to the consequences if he does so voluntarily, this Court is required to rule against appellant's contention as applied to the related conduct of appellant in this case because of the decision of the Supreme Court against the same contention in Caminetti v. U. S., 242 U.S. 470 at pages 493-494, 37 S.Ct. 192, at pages 197-198, 61 L. Ed. 442 at pages 456-457, affirming this Court's judgment in the case of Diggs v. U. S. and Caminetti v. Same, 220 F. 545, and approving the trial court's instruction to the jury in those cases which included the exact words (220 F. 545 at page 548) of the instruction in this case now attacked by appellant. The rule stated in that instruction is supported also by the later Supreme Court case of Raffel v. U. S., 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054, by other authoritative federal court decisions (Bolling v. U. S., 4 Cir., 18 F.2d 863; Brown v. U. S., 6 Cir., 234 F.2d 140; Carpenter v. U. S., 4 Cir., 264 F.2d 565; Brown v. U. S., 9 Cir., 201 F.2d 767; D'Aquino v. U. S., 9 Cir., 192 F.2d 338; Ziegler v. U. S., 9 Cir., 174 F.2d 439; Madden v. U. S., 9 Cir., 20 F.2d 289; Banning v. U. S., 6 Cir., 130 F.2d 330) and by Wigmore, Evid. (3d ed. 1940) § 2276(2).

Although appellant's counsel stated, both in his opening statement to the jury and when he began his direct examination of appellant before the jury, that appellant would be asked to testify only as to the circumstances under which he made the confessions to the city police officer and the FBI agent, and not as to whether appellant committed the crime in question, nevertheless, after the close of appellee's case in chief, appellant's counsel as part of appellant's case in chief called him as a voluntary witness on his own behalf before the jury and, among other things, asked him the following questions and received the following answers:

"Q. You were first questioned by Sergeant Rafferty. What were you questioned regarding? A. Regarding the robbery.

"Q. What did you say? A. I denied it.

"Q. You said you did not commit the robbery? A. Yes, I did."

Appellant's counsel did beforehand say in effect that those questions would be asked of appellant merely to show whether the confession was free and voluntary, but his competent counsel chose the questions and by those questions and answers appellant just as effectively put before the jury his denial of his guilt of the crime charged against him as if his counsel instead had asked him before the jury question: "Mr. Dyson, are you guilty or not guilty of this crime?", and had received the answer: "Not guilty". The fact is appellant did in that manner by his own voluntary testimony in his own behalf and by his own counsel's questions on direct examination of appellant before the jury effectively put before the jury appellant's own sworn statement on the merits, not merely on a collateral matter, that he "did not commit the robbery", and in effect that on the merits he was not guilty of the crime. He did not as did the defendant in Grantello v. U. S., 8 Cir., 3 F.2d 117, merely take the witness stand, speak his own name and say no more. Appellant did voluntarily testify on the merits, not upon a purely collateral matter, the Diggs-Caminetti case, supra, applies, and as therein ruled the appellant as such witness was subject to the same kind of cross-examination, including impeaching questions, as any other witness.

That appellee's counsel on cross-examination did upon appellant's counsel's objection to it withdraw his inquiry as to whether appellant did commit the robbery is no answer to the foregoing statements concerning appellant's testimony that he told the police officer he "did not commit the robbery".

Even if, however, the foregoing testimony of appellant before the jury as to his not committing the robbery were not in this case, it is, as to the other evidence directly relating to unvoluntariness, wholly unrealistic to say that appellant's testimonial attack, below stated in greater detail, upon the voluntariness and legality of his confession by saying in effect it was obtained only by promise of non-prosecution of appellant's relatives, was not intended by him to show a circumstance directly negating his guilt and directly supporting his plea of not guilty. Of course the appellant did expect the jury to give that direct effect to that testimony. In reality, as every judge and lawyer know, if a defendant succeeds in knocking out his confession either by the court's ruling or the jury's verdict because of his testimony that the confession was obtained by coercion, intimidation or improper promises, the defendant thereby strikes a vital if not fatal blow to the prosecution's case on the merits as to the guilt or innocence of the accused. The question of illegality of a confession through involuntariness by reason of intimidation in the making of the confession, in any case, goes, not to a collateral matter, but to the very heart of the merits of the question whether the defendant is or is not guilty. It is not a collateral matter, e. g., like that as to a former unrelated bank robbery. There is no justification in fact for appellant's contention here that what he said as a witness in his own behalf did not give rise to any basis for the Trial Court's instruction which was taken from the Diggs-Caminetti case, supra.

The rule of that case is still binding and is controlling of this Court's action upon the facts in this case including all those hereafter discussed, and appellant's first assigned error must be and is rejected.

We now turn to the appellant's second assigned error. From competent witnesses other than the appellant himself, the Government appellee, as part of its case in chief before the jury and before appellant testified before the jury, introduced evidence that the bank teller identified appellant as the robber; that the robbery occurred on May 4, 1959, about 1:00 or 1:30 P.M.; that appellant effected the robbery of the bank by delivering to the teller a note stating "I have a gun, give me $2,000" and by the teller's responsive passing to appellant from bank funds money bills and coins totaling $655.05, including some two-dollar bills with numbers previously recorded in the bank's records; that on the night of May 4, 1959, the robbery date, appellant delivered to his brother-in-law Harris five of the two-dollar bills taken in the robbery and also on that same night gave Harris about $195 to hold for appellant, although on the morning of the same day, appellant had very little, if any, money.

During the trial before the jury when appellee first indicated its intention to introduce evidence of appellant's oral confession of the acts charged against him, appellant's attorney asked the Trial Court's permission to inquire upon the voir dire in the absence of the jury as to whether the confession was...