Franano v. United States, 16904.

• Decision Date: 21 December 1962
• Docket Number: No. 16904.,16904.
• Parties: Tom Don FRANANO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

310 F.2d 533 (1962)

Tom Don FRANANO, Appellant, v. UNITED STATES of America, Appellee.

No. 16904.

United States Court of Appeals Eighth Circuit.

December 3, 1962.

Rehearing Denied December 21, 1962.

Kenneth C. West, Kansas City, Mo., for appellant.

F. Russell Millin, U. S. Atty., Kansas City, Mo., and Joseph Teasdale, Asst. U. S. Atty., and Clifford M. Spottsville, Asst. U. S. Atty., Kansas City, Mo., on the brief, for appellee.

Before JOHNSEN, Chief Judge, and MATTHES and RIDGE, Circuit Judges.

MATTHES, Circuit Judge.

Tom Don Franano, hereinafter referred to as defendant, was indicted for violating 18 U.S.C.A. § 2312 (1951), commonly called the Dyer Act. Specifically, the charge was that on or about April 12, 1960, defendant transported a 1960 Chevrolet automobile from Mobile, Alabama, to Kansas City, Missouri, knowing the same to have been stolen. On October 25, 1960, he was found gnilty by a jury, and on December 2, 1960, was sentenced to a term of 4 years and 330 days, to be served consecutively to the term of imprisonment imposed upon him in the case of United States v. Franano, bearing No. 20,107, in the District Court for the Western District of Missouri.¹

Defendant's application to the district court for leave to appeal in forma pauperis was denied by that court on the ground that the appeal was frivolous and not taken in good faith. Upon application to this court, we appointed Mr. Kenneth C. West, of Kansas City, Missouri, as attorney for defendant for the purpose of challenging the trial court's certificate of frivolousness. Upon the showing that was made, we found that defendant's contention that the evidence was insufficient to support his conviction was without merit, and denied appeal on that ground as frivolous. We did, however, conclude that there was sufficient merit in defendant's claim that the instructions were prejudicially erroneous to warrant the granting of an appeal for the single purpose of resolving that question. Mr. West was again appointed to represent defendant for purposes of the appeal.

Although the question whether the evidence was sufficient to sustain the conviction is not an issue on appeal, a brief resume of the salient facts will assist in a proper understanding of the attack made upon the court's charge to the jury.

From the Government's evidence, largely circumstantial in nature, it was shown that a new Chevrolet automobile was stolen from an automobile dealer in Mobile, Alabama, between March 31 and April 15, 1960, was transported to Kansas City, Missouri, by defendant, and was there offered for sale by him in the latter part of April, 1960. A tax assessor and a file clerk, both from Baldwin County, Alabama, testified that, on or about April 6, 1960, they dealt with a man, who identified himself as John W. Arnold, for the purpose of issuing a license for the vehicle now found to have been the stolen automobile in question. In their testimony both of these witnesses positively identified defendant as being "John W. Arnold," the same person who had been issued the Alabama license plates. After attempting to sell the stolen automobile in Kansas City, Missouri, in the latter part of April, defendant was arrested in that city on May 5, 1960, and thereafter was indicted on the charge that resulted in this prosecution. Despite efforts that had been taken to prevent identification of the vehicle, through the hidden body number it was established that the automobile that had been in defendant's possession in Kansas City was the same automobile that had been stolen in Mobile, Alabama. Defendant did not personally testify and defended on the basis of an alibi. His alibi witnesses, his brother and his brother's business associate, testified that defendant was in Kansas City at the time that defendant allegedly had been in Alabama under the guise of "John W. Arnold."

In contending that the court's charge to the jury was prejudicially erroneous, defendant relies upon four grounds:

1. That without request from defendant, the court improperly and emphatically directed the jury's attention to the failure of defendant to testify.

2. The charge failed to require the jury to find that the transported automobile had been stolen.

3. The comments of the trial judge upon certain phases of the evidence rendered the charge highly improper and unfair; that the charge was so partisan in favor of the Government's case that defendant was deprived of his constitutional right to a fair and impartial trial.

4. The failure to give a cautionary instruction in regard to the testimony of one of the Government's witnesses who had been previously convicted of felonies.

In the first brief filed on behalf of defendant, the only objection to the instruction was No. 1, set out above. This point is completely lacking in substance. The record clearly and conclusively establishes that the attorney who represented defendant in the trial affirmatively requested "the standard charge relative to the defendant not taking the stand." Present counsel for defendant apparently raised this objection to the charge in his initial brief before he had been informed of what had actually transpired, and in motion for an order to require the Government to furnish defendant with a copy of the transcript of the trial proceedings, counsel for defendant recognized that there was no merit to this point, stating: "These new data, of course, apparently effectively destroy the one main point selected by court appointed counsel and make it necessary to brief and present other points on the court's alleged unfairness or prejudice to comply with the order of this court. The petitioner should certainly not be penalized for the fact his court appointed counsel ignored weaker points for one strong and obvious point which has now been destroyed." Notwithstanding the above concession, we have carefully examined the court's instruction dealing with the failure of defendant to take the stand and testify in his own behalf, and are satisfied that it did not raise a presumption of guilt against defendant, but rather, clearly indicated that no adverse conclusion should be drawn against him.

Ground 2, equally lacking in merit, is not reviewable. The record discloses that defendant's attorney raised no objection to the court's failure to specifically and explicitly require the jury to find that the automobile in question had been stolen. The objections made by counsel to the court's charge were focused entirely upon the court's comments upon the evidence which, as we have observed, are the basis for Ground 3. In this situation, the claimed error may not effectively be raised for the first time on appeal. Rule 30, Fed.R.Crim.P.; Northcraft v. United States, 8 Cir., 271 F.2d 184, 189-190 (1959); Esters v. United States, 8 Cir., 260 F.2d 393, 396-397 (1958). We have nonetheless considered the claimed omission to determine whether the substantial rights of defendant were affected. Rule 52(b), Fed.R. Crim.P. While the jury was not explicitly required to find that the automobile had been stolen, the duty of the jury to make this finding was implicit in the charge. Trial counsel for defendant in his summation or argument to the jury had apparently contended that as a prerequisite to a verdict of guilt, the jury had to be satisfied that defendant had stolen the automobile, and further argued there was no evidence to warrant the jury in so finding. Because of this argument the court instructed the jury that whether defendant was the person who had stolen the automobile was not the issue to be determined, but rather the question was whether defendant had "wilfully, unlawfully, knowingly and feloniously transported or caused the transportation of that car in interstate commerce from Mobile, Alabama, to Kansas City, Missouri, knowing it to have been stolen." (Emphasis supplied). Here, unlike Dixon v. United States, 8 Cir., 295 F.2d 396 (1961), relied upon by defendant, the evidence conclusively established that the automobile had been stolen. The litigated issue was, as properly stated by the trial court, whether defendant had transported the automobile in interstate commerce knowing it to have been stolen. This issue was plainly, understandably and unequivocally submitted to the jury.²

Ground 3 has proved more troublesome. The portions of the charge to which defendant objected on the ground that the trial judge had transgressed the permissible bounds of fair comment upon the evidence and had become an advocate for the prosecution are:

"And I think I should also tell you that in determining the weight and credibility of any witness\' testimony, you have a perfect right to take into consideration your own common experiences in the affairs of life, and of course — and this is a comment that should be disregarded by you, that you can disregard, if you want to but I feel impelled to make this observation that — during the course of Mr. McMullin\'s argument I was wondering when he was discussing the various types of clothing that this defendant is supposed to have had on in Alabama, it is one of those little coincidences that happen, but as he was making that statement, it was just running through my mind, — well, what did Mr. McMullin have on yesterday? For the life of me I cannot remember. He told you then that he had on a light suit today and a dark suit yesterday, and yet I couldn\'t have told it to save my life and yet I knew him. You may disregard that as representing a comment on the evidence, but I think it points out what I meant when I said you could apply your own common experiences in life in determining the weight that you would give to any witness\' testimony.³

* * * * * *

"I seldom comment directly on the testimony that has been presented in a criminal case, but I think the testimony that has been adduced here deserves some comment. The pattern is precise. The two witnesses from Alabama were specific and direct in their

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