Goings v. United States

• Decision Date: 24 April 1967
• Docket Number: No. 18520.,18520.
• Citation: 377 F.2d 753
• Parties: Warfield Milo GOINGS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

377 F.2d 753 (1967)

Warfield Milo GOINGS, Appellant, v. UNITED STATES of America, Appellee.

No. 18520.

United States Court of Appeals Eighth Circuit.

April 24, 1967.

COPYRIGHT MATERIAL OMITTED

Thomas H. Foye, of Bangs, McCullen, Butler & Foye, Rapid City, S. D., for appellant and filed typewritten brief.

Harold C. Doyle, U. S. Atty., Sioux Falls, S. D., for appellee. Ronald E. Clabaugh, Asst. U. S. Atty., Sioux Falls, S. D., was with him on the brief.

Before MATTHES, LAY and HEANEY, Circuit Judges.

LAY, Circuit Judge.

In August 1964 Warfield Milo Goings, then 19 years of age, along with companions Ramona Two Two, a child of 15, Delbert Wayne Ghost Bear, then 21, Albert Whiting, Jr., then 22, and Lester Duane Sierra, Jr., a youth of 16, lived on a government Indian Reservation in Pine Ridge, South Dakota. All of the above became involved in a drinking spree during a three-day period resulting in break-ins of a cafe, drive-in, and a filing station in Pine Ridge, netting the group some potato chips, potato salad, pop, candy bars, a bubble gum machine, some cigarettes and, at the filling station, six guns and approximately twelve dollars in cash. The evidence is clear that during this spree the defendant performed the merciless act of shooting a watchdog at the drive-in. This lawless experience brought criminal indictments under federal law for burglary, based upon Tit. 18, U.S.C. § 1153 where "* * * the offense of burglary shall be defined and punished in accordance with the laws of the State in which such offense was committed."¹

Ramona, Lester Duane, Albert, and Delbert all pleaded guilty to the charges. All were placed on probation with the exception of Lester, who was sentenced to the Federal Correction Institution at Englewood, Colorado.

Warfield Goings pleaded not guilty and through appointed counsel requested a jury trial. Upon a jury verdict of guilty on three counts of an indictment, the district court sentenced him to the penitentiary for consecutive terms of three years on each count, or a total of nine years.^1(a) Defendant brings this in forma pauperis appeal claiming two grounds for reversal: first, that the court erred in his instructions on the defense of intoxication, and secondly, that prejudicial error occurred by reason of improper interrogation of the government witnesses.

We find no merit in the first ground, but reverse and remand the proceedings for a new trial on the latter contention.

The defendant testified that he was "drunk" throughout an eight day period of time, including August 20 to August 22², and could not remember any events that took place.

Defendant argues that he did not have the requisite intent to commit the burglaries. Intoxication is not a defense in South Dakota, but sufficient evidence of it could vitiate the specific intent required to commit certain crimes. The trial court submitted this defense in the following language:

"You are also instructed that as you ponder the question of guilt or innocence of this defendant, you must keep in mind that intoxication under the law is not a defense, unless from the record as a whole on that question there is enough to create a reasonable doubt as to whether or not he was sober enough to form the required intent to commit the crime charged."

Defendant claims that the same is misleading in that it could be construed that the defendant had the burden of proof in showing "reasonable doubt." Defendant did not make specific exception to the instruction on this ground. Nevertheless we feel, when read with all other instructions, it is not misleading as to burden of proof. Secondly, it is argued that the instruction does not unequivocally state that defendant is entitled to an acquittal under circumstances where he does not have the intent. It would appear the court was generally instructing in conformance with the South Dakota statute. State v. Kapelino, 20 S.D. 591, 108 N.W. 335. See also People v. Odell, 1 Dak. 197, 46 N.W. 601 and State v. Ford, 16 S.D. 228, 92 N.W. 18. This was permissible and although not as specific as defendant's request or as other approved instructions³ in this area, we think it meets the minimum standards of the law and is not error.

We now come to the government's examination of Delbert Wayne Ghost Bear.⁴ He was on probation by reason of the events of August 20-22, 1964 and was called to testify on behalf of the government. The witness was asked and he answered these questions:

"Q. Now, during August of 1964, where were you?

"A. I can\'t remember too well.

"Q. To refresh your memory, were you at Pine Ridge?

"A. Yes, sir.

"Q. Now on Thursday evening of August 20, 1964, where were you?

"A. I can\'t remember.

"Q. Well, to refresh your recollection did you, previous to coming to court here, give a statement to Mr. Moore, Criminal Investigator, and also Mr. McCarty, Special Agent of the F.B.I.? * * *

"Q. Do you remember giving them a statement?

"A. Yes, sir.

"Q. And before coming into court, Delbert, weren\'t you furnished a copy of that statement to re-read?

"A. Yes, sir.

"Q. And did you re-read it?

"A. I forgot to read it.

"Q. Didn\'t I ask you whether or not you had looked it over, and didn\'t you say you had?

"A. I said I forgot to read it.

"Q. Can you read?

"A. Not very good. * * *"

The witness stated he had a twelfth grade education. The government then, out of the presence of the jury, claimed "surprise" and moved to have the court declare the witness "hostile" on the grounds that the witness had told the government he had read the statement before coming to court and inferred that since talking to the defendant the witness had conveniently lost his memory. The court thereupon declared that the witness was "hostile" and ruled:

"This is not impeachment, this is statements elicited by reason of the fact that he is hostile — a hostile witness. * * * I think it\'s substantive evidence because he refuses to testify, and he is a hostile witness, and for that reason, as to any statements he made in there, you can ask leading questions." (The defendant objected to the examination on the ground that it was improper impeachment and that the statement was not made under oath, not subject to cross examination.) (Our emphasis)⁵

Thereafter, each sentence of the statement was read to the witness and asked if that was a correct statement. Because of the significance we have set out in the Appendix the text of that portion of Ghost Bear's examination.

In addition, the trial court instructed the jury as to his testimony as follows:

"The Court, after hearing certain preliminary testimony of one Delbert Wayne Ghost Bear and in conjunction therewith a statement from the witness that he `couldn\'t read so good\', even as he admitted being a high school graduate, held him to be a hostile witness, and leading questions by the prosecution for that reason permitted. This testimony is to be treated as a part of the affirmative proof by the government, but you are instructed that it, as well as all other testimony, is to be scanned against the background of credibility heretofore submitted."

Exception was taken to this instruction on the ground that it allowed the jury to consider the statement as substantive evidence.

As indicated, the trial court did not consider Ghost Bear's statement as impeachment. Even assuming a witness's inability to remember can be specifically contradicted by ex parte statements (compare, Troublefield v. United States, D.C.Cir., decided December 12, 1966, 372 F.2d 912), the government did not attempt to pursue any further foundation for impeachment. The only question asked, "Where were you on the night of August 20, 1964?" and the answer, "I can't remember," can not provide foundation to impeach with the statement relating details of events occurring that evening as well as August 21 and August 22. But the overwhelming weight of authority holds that impeachment of one's own witness must be established on the predicate of both "surprise" and "damage."⁶

In Randazzo v. United States, 8 Cir., 300 F. 794, at 797-798, this court stated:

"* * * In its simplest statement it is that, when a party calls a witness and is surprised by affirmative evidence given by the witness, which actually aids the adversary party, the party calling the witness may cross-examine him, and show statements made by him which are contrary to the testimony given by him on the witness stand. * * * But when the witness merely fails, when called, to testify in favor of the party calling him, as he was expected to do, but says nothing which tends to aid the case of the adversary party, he cannot be cross-examined or impeached by the party who calls him. * * *

"The situation as to the witness Ray is somewhat different on the facts. This witness, when on the stand, failed to testify as counsel for the government confidently expected he would. As the basis for this expectation, the government relied on an alleged statement made by the witness, to the assistant district attorney, which, it was intimated, was had in a conversation with counsel for the government and later embodied in an affidavit. But Ray gave no evidence in any way helpful to the defendants, nor did he aid the case of the government. In short, his testimony was wholly colorless and negative in probative effect. In such case, any showing of any former statements of the witness, in which he said things hurtful to defendants was inadmissible."

See also Kuhn v. United States, 9 Cir., 24 F.2d 910, 913; Mitchell v. Swift & Co., 5 Cir., 151 F.2d 770; Bushaw v. United States, 9 Cir., 353 F.2d 477, at 481.⁷

However, in conjunction with the court's ruling the government sought specifically to utilize the statement not as impeaching evidence but through leading questions to refresh the witness's recollection with it. Refreshing a witness's recollection by memorandum or prior testimony is perfectly proper trial procedure and control of the same lies largely in the...