Evenson v. United States

• Decision Date: 23 April 1963
• Docket Number: No. 17146.,17146.
• Citation: 316 F.2d 94
• Parties: Oral Sylvester EVENSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

316 F.2d 94 (1963)

Oral Sylvester EVENSON, Appellant, v. UNITED STATES of America, Appellee.

No. 17146.

United States Court of Appeals Eighth Circuit.

April 23, 1963.

R. Richard Straub, St. Louis, Mo., for appellant.

John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for appellee; Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., with him on the brief.

Before VOGEL, VAN OOSTERHOUT and RIDGE, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Defendants Oral Sylvester Evenson and his son, Jerome Henry Evenson, were indicted, tried by a jury, convicted and sentenced upon a charge of conspiracy (18 U.S.C.A. § 371), with each other and with another person, to transport in interstate commerce a specified automobile known to have been stolen. This is an appeal by Oral Sylvester Evenson, hereinafter called Appellant, from such conviction.

This court has appointed Mr. R. Richard Straub to represent the appellant upon this appeal. Mr. Straub has competently presented appellant's contentions to this court by written brief and oral argument. We express our thanks to him for his able representation of the appellant upon this appeal.

Appellant does not here contend that the evidence is insufficient to support the conviction. Hence, we deem it unnecessary to detail the evidence. We have carefully examined the entire record and find that the Government has made out a strong case against the appellant.

Appellant urges that he is entitled to a reversal and a new trial because of prejudicial errors committed by the trial court in the following respects:

I. Denial of mistrial after a Government witness made a reference to appellant's criminal record.

II. Refusal to exclude inadmissible testimony offered by the Government.

Our examination of the record satisfies us that the trial court committed no prejudicial error and that appellant's conviction should be affirmed. We will consider the errors in the order stated.

I.

Trooper Crutchfield of the Missouri State Highway Patrol, the arresting officer, as a Government witness on direct examination when asked to relate his conversation with the appellant, testified:

"He said that the subject driving the Chevrolet was his son, that it was a stolen car, and he said that when I did observe them side by side on the road there, when they were following me, he admitted that he had told his son to ditch the car, that it was hot, and he admitted to his past record, because of his being booked in, we needed sufficient information —"

Appellant's trial counsel interrupted, stating, "Just a moment." Whereupon the trial court stated, "That will be sustained, be stricken, the jury will disregard it." The portion of the above testimony objected to was that reading: "he admitted to his past record." Appellant's counsel moved for a mistrial upon the basis that such statement was prejudicial and deprived him of a fair trial. The court excused the jury and interrogated the witness. The witness stated that this was his first appearance in federal court and that he did not know the testimony was incompetent. The court made a remark to the effect the statement was made "unthoughtedly". The record does not compel a conclusion that the criticized statement was knowingly injected into the record by the prosecution.

The court overruled the motion for a mistrial, recalled the jury, and stated:

"The testimony of the witness, other than what the witness stated about what Oral Evenson said to him about the car pulling up to the side, and what he said purporting to be his son, can remain, but the rest of the testimony with respect to what he told this trooper will be stricken and the jury will disregard it."

No request for any further instruction upon this subject matter was made.

This court has uniformly applied the prejudicial error rule to the mistrial situation here presented. Davis v. United States, 8 Cir., 229 F.2d 181, 186-187; Berra v. United States, 8 Cir., 221 F.2d 590, 595-596. We found in each of the aforesaid cases that prejudicial error was not established.

Appellant places considerable reliance upon United States v. James, 2 Cir., 208 F.2d 124. The James case is distinguishable in a number of respects. In Berra we declined to follow the James case to the extent that it may be inconsistent with the rule applied in Berra. We adhere to such position.

In Dolan v. United States, 8 Cir., 218 F.2d 454, we dealt with the general rules to be followed in considering motions for mistrials. Upon the basis of supporting authorities, we stated:

"The question whether the admission of evidence which turns out to be inadmissible requires such a drastic remedy as the granting of a mistrial is addressed to the sound discretion of the trial court, which has the feel of the case and is in a far better position than an appellate court to appraise the effect upon the minds of the jurors of the evidence improperly admitted and to determine whether the jury is capable of following the court\'s instructions to disregard such evidence."

The strength of the case made out by the Government is an important factor entitled to consideration in appraising the probable effect of the asserted error. Homan v. United States, 8 Cir., 279 F.2d 767; Davis v. United States, supra.

The Supreme Court in Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 1247-1248, 90 L.Ed. 1557, in stating the test for judging prejudicial error, among other things stated:

"If, when all is said and done, the conviction is sure that the

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