Everitt v. United States

• Decision Date: 01 November 1960
• Docket Number: 17876 and 17875.,No. 17893,17893
• Citation: 281 F.2d 429
• Parties: Ronnie J. EVERITT, William Dallas Stevens and George Rondel Kirkland, Appellants, v. UNITED STATES of America, Appellee. Alfis O'Neal THOMPSON, Jr., Appellant, v. UNITED STATES of America, Appellee. Dock Perry GLENN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

281 F.2d 429 (1960)

Ronnie J. EVERITT, William Dallas Stevens and George Rondel Kirkland, Appellants, v. UNITED STATES of America, Appellee.

Alfis O'Neal THOMPSON, Jr., Appellant, v. UNITED STATES of America, Appellee.

Dock Perry GLENN, Appellant, v. UNITED STATES of America, Appellee.

Nos. 17893, 17876 and 17875.

United States Court of Appeals Fifth Circuit.

August 8, 1960.

Rehearing Denied October 3, 1960.

Rehearing Denied November 1, 1960.

COPYRIGHT MATERIAL OMITTED

R. O. Vorbusch, New Orleans, La., for appellants.

Wilfred C. Varn, U. S. Atty., F. E. Steinmeyer, III, Asst. U. S. Atty., Tallahassee, Fla., for appellee.

Before HUTCHESON, JONES and WISDOM, Circuit Judges.

Rehearing Denied in No. 17875 October 3, 1960.

Rehearing Denied in No. 17893, November 1, 1960.

HUTCHESON, Circuit Judge.

These appeals are from judgments on jury verdicts entered in cases tried separately, in the order set out above, and separately appealed. They are based on indictments¹ charging schemes of the same general nature, to defraud insurance companies by pretended claims that fictitious and feigned automobile wrecks, occurring at various times and places in 1955 and 1956, were real and bona fide, and that the mails and, in Everitt's case, interstate telephonic communications were used in the Northern District of Florida, to effect the schemes.

While not necessary for the decision of these appeals that we do so, we think that, because of the many indictments and defendants involved, the haste with which these cases now before us were tried, and the general resulting confusion, the following preliminary statement will serve a useful purpose in clarifying the situation and circumstances surrounding the litigation as a whole and particularly the series of cases involved in these appeals.

On September 19, 1958, with consent of the then counsel of the parties, the court consolidated and set for trial, for October 6, 1958, at Marianna, the cases against Belvin, et al., note 1, supra, and for the first day of the April, 1959 term at Marianna, Marianna Criminal No. 1342, Pensacola Criminal No. 5237 against Everitt and Stevens, and Tallahassee Criminal No. 2269 against Everitt, Stevens and Kirkland.

On October 6, 1958, the cases set for trial for that day were called and tried, except as to defendants Thompson and Glenn, who were not in custody and did not appear; and the Marianna indictments Nos. 1339, 1340 and 1341, as to Thompson, and No. 1341, as to Glenn, were severed and continued for trial as to them.

On January 6, 1959, Thompson and Glenn appeared with counsel, W. Fred Turner, and pleaded not guilty, and the cause was set for trial as to them for the second Monday in June.

During the April, 1959 term at Marianna, to which the cases had been adjourned for trial, Thompson, appearing without counsel and requesting appointment of counsel, moved for continuance and postponement and for sufficient further delay to prepare his case, for change of venue because of prejudice created by newspaper articles, and to quash a statement obtained from him.

The court, denying all motions for further time to prepare for trial and Thompson's other motions, appointed Mr. Urquhart as counsel for Kirkland, Everitt and Stevens, and Mr. Hays as counsel for Thompson, and denied Glenn's request for the assistance of counsel and Kirkland's motion to be tried separately in No. 2269.

On June 8, the court, pursuant to a plan, for an immediate disposition of all the cases, already determined upon, notified Thompson and Glenn to stand ready for trial immediately following the trial of Everitt, Stevens and Kirkland in the three cases, Marianna No. 1342, Pensacola No. 5237, and Tallahassee No. 2269, and these cases were then put to trial.

At 1:40 P.M. on June 9, the jury in these cases retired and at 2:10 P.M. returned a verdict of guilty² in Marianna Cr. No. 1342 and Tallahassee Cr. No. 2269, the district court having, on his own motion, dismissed Pensacola No. 5237.

On June 10th, when the next cases, Marianna Cr. Nos. 1339 and 1340 against Thompson alone and 1341 against Thompson and Glenn were called to be tried together, Glenn's motion for severance in Cr. No. 1341 was granted, and the trial of that case as to him alone was adjourned until June 11, 1959, at 9:30 A.M. The three cases against Thompson, Cr. Nos. 1339, 1340 and 1341, then went to trial. Submitted to the jury for its verdict at 9:24 on June 11, a verdict of guilty on all indictments was returned at 9:45.

Immediately thereafter Glenn's case was called for trial, and, a jury, eight of whose members had been on the jury in the Everitt case and had been complimented by the court upon their verdict and for returning it so promptly, was placed in the box. At 3:20 the same day, the evidence in and the arguments and charge concluded, the jury retired to consider its verdict, and at 3:52 returned a verdict of guilty.

Since, as will appear from our opinion in the three cases, each of them will have to be reversed for basic or fundamental procedural errors attending the trial, we will not undertake a discussion of the merits of the several cases further than to say, in agreement with the opinion in the Belvin case, 273 F.2d 583, 584, that we do not think the judgments in any of them should be reversed and rendered for failure of the evidence as matter of law to make out a case for submission to the jury. Since, too, it is most likely that on the retrial of these cases, none of the claimed errors will be repeated, we will not deal here with the many claims of error so vigorously urged in the brief of appellants' appointed counsel. Instead, in dealing with the appeals and giving our reasons for concluding that the judgments in them must be reversed, we will confine our opinion in each of the cases to stating, within the briefest compass, only those reasons for reversing the judgments which we regard as most compelling.

The Appeals of Everitt, Stevens and Kirkland.

While the court did, in the first week in June, appoint Mr. Urquhart counsel for Kirkland, as well as for Everitt and Stevens, Kirkland, before the case was called for trial on June 8, secured counsel of his own, a Mr. Duncan, and on June 8, when it was called for trial, Duncan filed a motion to sever the trial of the sole indictment in which Kirkland was charged from the trial of the three indictments with which the others were charged. That motion was denied, and Kirkland was compelled to go to trial under the great handicap of being confronted with other matters and transactions with which, though they were of the same general nature as the one he was charged with, he was neither charged nor otherwise connected. This action constituted prejudicial error which could not have been cured if, as the judge did not, he had instructed the jury not to consider against Kirkland any of the evidence offered on the other charges. Rules 8(b) and 13, Federal Rules of Criminal Procedure, 18 U.S.C.A. Cf. Griffin et al. v. United States, 5 Cir., 272 F.2d 801; 273 F.2d 958; and Schaffer v. United States, 5 Cir., 221 F.2d 17, 54 A.L.R.2d 820. In addition, the harmful effect was heightened and aggravated by the fact that the district judge did not at any time or in any way advise the jury that, in determining Kirkland's guilt, the proof of the other offenses could not be considered by them.

But this was not all that occurred to prevent Kirkland and his co-defendants from having a fair trial. Mr. Holmans, who testified as a government witness that he was a special agent for the Association of Casualty and Surety Companies and that he contacted Kirkland to obtain a statement from him, was permitted to testify in the presence of the jury that he took a statement and that he had in his hand the original copy of a five page typewritten statement signed and sworn to by Kirkland regarding the automobile accidents.

The district attorney then undertaking to offer the statement into evidence, counsel for Kirkland moved that a preliminary examination be conducted outside of the hearing of the jury to have the court determine whether or not the so-called statement was given freely and voluntarily, and, referring to a motion made earlier by Kirkland to exclude the use of the statement because taken from him under circumstances preventing its being a free and voluntary statement, he renewed that motion. The court, saying, "This is a good way to ease that pain, isn't it? Members of the jury go out a few minutes.", sent the jury out. Whereupon the examination of the witness was continued by Mr. Duncan.

In the course of this inquiry, the court took the witness over, and, when he had concluded his examination, defendant's counsel answering "Yes" to his query: "You want to object to its receipt in evidence on the ground that it was secured under duress?", the court said: "I will overrule that objection, but I would like to see that statement and see if we can't dig up a better ground on which to keep it out."

It was then that the court appointed attorney for the other defendants, Mr. Urquhart, spoke up for them and vigorously objected to the statement as highly prejudicial to them, and the following then occurred:

Mr. Duncan, before the evidence was finally admitted, asked to put his client on the stand, and the court said: "No, you can't do it that way. After the government closes its case, if you want to, you can put him on, but you can't put him on now. Counsel insisting that he wanted the court to hear the defendant's testimony for the court's determination whether the statement was free and voluntary or was induced by threats or promises, the court ruled that he would not hear the defendant and would let the statement go to the jury.

Mr. Urquhart then stating, "If this testimony goes in, even if the judge charges the jury not to consider it against the others, I feel this will convict these men and deprive them of due process", the court ruled that...