Johnson v. United States

• Citation: 362 F.2d 43
• Decision Date: 09 June 1966
• Docket Number: No. 18095.,18095.
• Parties: Nathaniel JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

362 F.2d 43 (1966)

Nathaniel JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

No. 18095.

United States Court of Appeals Eighth Circuit.

June 9, 1966.

Samuel Raban, St. Louis, Mo., for appellant.

Harold F. Fullwood, Asst. U. S. Atty., St. Louis, Mo., Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., on the brief, for appellee.

Before JOHNSEN and BLACKMUN, Circuit Judges, and YOUNG, District Judge.

GORDON E. YOUNG, District Judge.

This is an appeal from Nathaniel Johnson's conviction under an information charging him with violating 18 U.S.C. § 659. More specifically, the information charged that Johnson (hereinafter referred to as appellant) did take and carry away certain goods valued at over one hundred dollars, with intent to convert these goods to his own use, and that these goods constituted part of an interstate shipment of freight from Roanoke, Virginia to St. Louis, Missouri.

The testimony in the court below revealed the following facts. On October 20, 1964 a truck carrying a shipment of women's dresses was being unloaded at the Underwood Cartage Company in St. Louis, Missouri. Dan Simmons was among those employed by Underwood to do this job, and on one of his trips from the trailer during the process of unloading, he saw a man carrying away one of the cartons he had just placed on the dock. Simmons yelled at the man to find out what he was doing. Upon hearing the yell the man began to run, carrying the carton away. Simmons picked up a piece of iron pipe about four feet long and followed him. The chase proceeded down the loading dock, which was approximately one hundred feet long, and as the two left the dock Simmons noticed another man at a car in the parking lot some fifty feet away. This second man was loading another carton into the trunk of the car. When he saw the two men running, he turned and ran. Simmons, now giving chase to the two men, noticed a third man at the steering wheel of the car trying to start it. After running about thirty feet past the car, Simmons decided he could not catch the two men so he returned to the car to try to stop the third man from driving away. He took the iron pipe he was carrying and broke out the windshield and the left front window and wing glass. At this time the other two men came back armed with a knife and a rock, and a fight began. Then the car finally started, and as it did the two men who were fighting Simmons turned and ran in the direction in which the car left. Simmons noted the license number of the car as it drove away from the parking lot and gave it to the police when they later investigated the theft.

A few days later the Federal Bureau of Investigation and the St. Louis police located a car with this license number in an auto body shop with a newly installed windshield. Agents of the F.B.I. went to the shop, took some pictures of the car, and brought Simmons in to identify it. After Simmons had verified that this was the car which he had damaged, the F.B.I. agents told the owner of the shop that the car was stolen and to notify them if anyone came in to claim it. Three or four days later the car was claimed by a Miss Myles who, as owner of the car, had been notified by the F.B.I. of the car's location. It was later discovered that Miss Myles had a friend, who is the appellant in this case. He had been helping her pay for the car, and he drove it occasionally both with and without her permission. She often left the key to the car under the floor mat while she was at work so that he might drive it. In fact, this is what she had done on the morning of October 20, 1964, the day of the theft.

Subsequently appellant was arrested and charged with the theft. Simmons was brought to the police station, where he identified appellant as the man who was driving the car involved in the theft. The record shows that appellant waived his right to have a grand jury consider the charge and consented to be tried under an information. He pleaded not guilty at his arraignment and was brought to trial July 26, 1965.

The trial was a short one at which five witnesses testified for the prosecution — and appellant, after a motion for acquittal, rested without putting on any evidence. Appellant's motion for acquittal was denied and the jury returned a verdict of guilty. In accordance with that verdict the court sentenced appellant to five years in the custody of the Attorney General. In due time appellant filed his appeal "in forma pauperis" in this court.

Appellant sets out five points upon which he bases his appeal.

1. The admissible evidence was insufficient to prove beyond a reasonable doubt that defendant was guilty of the offense charged.

2. The exhibits offered by the Government and introduced into evidence for consideration by the jury had been prejudicially altered physically after the commission of the offense and should not have been admitted into evidence in that condition. They were inadmissible.

3. Under the "Plain Error" rule, the verdict should be set aside and a new trial granted to the defendant, with directions to the Government to desist from offering the altered exhibits in their present condition.

4. The defendant was deprived of a fair and impartial trial in violation of his rights under the Fifth Amendment to the Constitution of the United States of America.

5. The defendant was deprived of his right of effective assistance of counsel as required under the provisions of the Sixth Amendment to the Constitution of the United States of America.

Although within the format of his brief and argument appellant treats each of these as separate and distinct points of appeal, actually they all are dependent upon the admissibility of certain evidence which appellant questions for the first time at the appellate level. The first, fourth and fifth points are derivative points that arise only if the questioned evidence is held inadmissible. For, example, the question of the sufficiency of the evidence is raised only in connection with the remaining evidence if the challenged testimony and exhibits are held inadmissible. Therefore, the court shall first address itself to the question of the alleged erroneously admitted evidence.

It should be noted at the outset that no objection was raised in the court below to the evidence which is questioned here. Normally this court would not consider such matters. Holt v. United States, 303 F.2d 791, 794 (8th Cir. 1962). However, Rule 52(b) Title 18 U.S.C.A. does make provision for this court to consider matters not brought to the attention of the court below if such matters are considered "plain errors or defects affecting substantial rights" of either party. This court has been very cautious in applying this rule and uses it only when necessary to avoid a miscarriage of justice. The court's position was most clearly set out by Judge Van Oosterhout in Gendron v. United States, 295 F.2d 897, 902 (1961), when he said:

"The application of Rule 52(b) rests within the sound judicial discretion of the appellate court. The normal rule is that an appellate court should not consider questions which have not been properly raised in the trial court and upon which the trial court has had no opportunity to pass. The plain error rule should be applied with caution and should be invoked only to avoid a clear miscarriage of justice. To exercise the right freely would undermine and impair the administration of justice and detract from the advantages derived from orderly rules of procedure. See Johnson v. United States, supra; 291 F.2d 150, 156 (8th Cir. 1961) Billeci v. United States, supra; 290 F.2d 628, 629 (9th Cir. 1961) Page v. United States, supra; 282 F.2d 807, 809 (8th Cir. 1960)." citations added

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