Evalt v. United States

• Decision Date: 08 September 1967
• Docket Number: No. 21519.,21519.
• Citation: 382 F.2d 424
• Parties: Anton Vaughn EVALT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

382 F.2d 424 (1967)

Anton Vaughn EVALT, Appellant, v. UNITED STATES of America, Appellee.

No. 21519.

United States Court of Appeals Ninth Circuit.

September 8, 1967.

William C. Harrison, Spokane, Wash., for appellant.

Smithmoore P. Myers, U. S. Atty., Spokane, Wash., for appellee.

Before HAMLEY and MERRILL, Circuit Judges, and MATHES, Senior District Judge^*.

HAMLEY, Circuit Judge:

Anton Vaughn Evalt appeals from his conviction on a two-count indictment charging him with robbing a federally insured bank and, during the course of the robbery, putting a person's life in jeopardy by the use of a dangerous weapon. 18 U.S.C. § 2113(a) and (d) (1964).

This is the second time Evalt has been convicted under this indictment, and the second time his conviction has been before this court. On the first apepal we reversed and remanded for a new trial because of errors in admitting certain testimony and permitting prejudicial comments by the prosecution. However, we also held that the arrest of defendant was based on probable cause and the evidence seized during the immediate search was properly admitted. Evalt v. United States, 9 Cir., 359 F.2d 534.

On this appeal from his retrial, Evalt challenges several rulings by the trial court. In essence, he contends that the trial court erred in (1) not hearing or ruling on his motion to suppress prior to the trial, (2) admitting the evidence sought to be suppressed, (3) refusing to grant a continuance in order to subpoena an absent defense witness, (4) refusing to give a requested insanity instruction, (5) refusing to grant a judgment of acquittal for insufficiency of the evidence, and (6) refusing to grant a new trial on the ground of newly-discovered evidence.

Refusal to Hear the Motion to Suppress Prior to Trial

Pursuant to Rule 41(e), Federal Rules of Criminal Procedure, defendant made a pre-trial motion to suppress certain evidence. In his motion defendant alleged that the evidence seized at the time of Evalt's arrest was inadmissible because the seizure was made without a search warrant and, because the county sheriff lacked probable cause, the search was not incident to a valid arrest. He also alleged that the seizure was illegal for the additional reason that the search went beyond the permissible scope of a search incident to an arrest. In his motion defendant also sought to suppress all incriminating statements made by him following his arrest, and, apparently, all other evidence which the Government might seek to use against him at trial, including the testimony of eyewitnesses. The trial court withheld argument on the motion to suppress until the Government made an offer of proof during the trial.

At the trial defendant objected strenuously to the admission of the evidence seized at the time of his arrest. Similar objections were raised at various times during the trial and at the close of all the evidence. The trial court, however, overruled all of defendant's objections, holding that the arrest was based on probable cause and the search incident thereto. The defendant's incriminatory statements were not offered by the Government, and the remainder of the Government's evidence was allowed into evidence without further objection.

Under the circumstances of this case, the trial court did not err in refusing to hear the motion to suppress prior to trial. The court had before it our previous decision on the search and seizure question, and the defendant's motion did not specifically allege facts different from those found on the prior appeal. In addition, the pre-trial motion to suppress was of such wide range that a pre-trial hearing on the motion would have required presentation of almost all the evidence to be introduced at trial. No actual prejudice was asserted as a result of the postponing of the hearing, and we are unable to perceive any. Although Rule 41(e) provides that a motion to suppress should normally be made prior to trial, it does not foreclose the trial court from postponing consideration thereof until the trial. The trial court may exercise a sound discretion as to this. See DiBella v. United States, 369 U.S. 121, 129, n. 9, 82 S.Ct. 654, 7 L.Ed.2d 614. In this case the trial court did not abuse its discretion in this regard.

Admission of Evidence Seized at the Time of Arrest

In our previous decision in this case we held that, on the basis of the record in that trial, the county sheriff had probable cause to arrest Evalt. Thus, the search of his immediate possessions was lawful. Evalt v. United States, 9 Cir., 359 F.2d 534, 539-540. Unless the facts found at the retrial vary materially from those found in the previous trial, our decision in the earlier appeal is controlling. Cervantes v. United States, 9 Cir., 278 F.2d 350, 352.

We have examined the record and conclude that the trial court was warranted in finding that the facts were the same, or nearly the same, as those adduced at the previous trial.¹ The trial court therefore did not err in adhering to our ruling on the prior appeal.

Defendant makes the further argument, not advanced on the previous appeal, that the search of his packsack by a federal officer sometime after the arrest was unrelated to the arrest and illegal absent a valid search warrant. At the time of the arrest the county sheriff searched the packsack in defendant's possession and found what was believed to be the stolen money. The packsack and its contents were taken into custody along with the defendant. Sometime later the F.B.I. agent investigating the robbery went through the packsack, comparing the serial numbers on the money with that reportedly stolen from the bank. This warrantless search, defendant argues, was illegal because it was not incident to the arrest. Since we have found, however, that the sheriff's seizure of the packsack was valid, the stolen money was lawfully in the sheriff's custody. RCWA 10.79.030 (1961). Therefore, the subsequent search by a federal officer was not unreasonable. See Cooper v. State of California, 386 U.S. 58, 61-62, 87 S.Ct. 788, 17 L.Ed.2d 730.

Refusal to Grant a Continuance

Evalt's primary defense on retrial was alibi. He attempted to establish that at the time of the robbery in Twisp, he and his family were in Marblemount, Washington. Doris Willi, a waitress and cook at a Marblemount inn, was called to the stand. When asked if she recalled seeing Evalt on September 5, 1963, she stated: "I can't rightly say. He looks a little familiar. * * *" Defendant then moved for a continuance, claiming that the wrong waitress had been summoned. Outside the presence of the jury and under questioning by the court, Mrs. Willi stated that none of the other persons she talked to could definitely identify seeing Evalt in Marblemount on September 5. The trial court denied the motion for a continuance because there was not a showing that the second waitress' testimony would be vital to the defense.

As defendant recognizes, the granting of a continuance to procure an absent witness rests in the sound discretion of the trial court and will not be reviewed on appeal in the absence of a clear showing of abuse. Lemons v. United States, 9 Cir., 337 F.2d 619. Here the trial court found, and there was ample evidence to support this finding, that the absent witness' testimony would be of no particular benefit to the defense. The trial court did not abuse its discretion in refusing to grant a continuance.

Sufficiency of the Evidence

Count II of the indictment charged defendant with putting life in jeopardy "by the use of a dangerous weapon or device. * * *" 18 U.S.C. § 2113(d) (1964). The robbery took place in the small town of Twisp, located in north-central Washington. A witness standing across the street from the town's only bank testified that a rust-colored Chevrolet came hurriedly up the main street of Twisp and stopped in front of the bank. With the engine still running, a masked person wearing orange garden gloves emerged from the car and proceeded into the bank. The bank teller testified that this person...