Mason v. United States

• Decision Date: 23 April 1969
• Docket Number: No. 10017-10019.,10017-10019.
• Parties: Hubert MASON, and Charles Albert Garrett, Jr., Appellants, v. UNITED STATES of America, Appellee. Samuel Lewis GLADNEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

408 F.2d 903 (1969)

Hubert MASON, and Charles Albert Garrett, Jr., Appellants, v. UNITED STATES of America, Appellee.

Samuel Lewis GLADNEY, Appellant, v. UNITED STATES of America, Appellee.

Nos. 10017-10019.

United States Court of Appeals Tenth Circuit.

March 17, 1969.

Rehearings Denied April 23, 1969.

William L. Rice, Denver, Colo., for appellant, Hubert Mason.

Virginia Malloy, Denver, Colo., for appellant, Charles Albert Garrett, Jr.

E. M. Heppenstall, Denver, Colo., for appellant, Samuel Lewis Gladney.

Milton C. Branch, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty., with him on the brief), for appellee, United States.

Before PHILLIPS, HILL, and SETH, Circuit Judges.

SETH, Circuit Judge.

The opinion heretofore filed in these cases is withdrawn and the following is substituted:

The appellants were originally tried and convicted on an indictment charging a conspiracy to violate section 174 of Title 21 U.S.C. by the importation of heroin and the concealment and sale thereof. On appeal to this court the case was reversed and the appellants were re-tried on the same charge and again convicted.

Appellants have taken this second appeal urging that the trial court was in error in permitting the Government to use at the second trial the testimony of certain witnesses given at the first trial. The appellants also argue that the verdicts were not supported by the evidence.

One of the defendants, Frank Wilson, died after sentence and while his appeal was pending. An order has been entered abating the judgment and sentence as it pertains to him.

As to the remaining appellants, the record shows that during the course of the second trial the prosecution called four witnesses who had testified as witnesses for the Government at the first trial. These men were Willie Salone, Jr., William J. Crawford, Willie C. Blue, and Larry "Bo" Bailey. When called to testify each refused to do so on Fifth Amendment grounds. Immunity was then granted to each of them pursuant to 18 U.S.C. § 1406, but they still refused to testify except the witness Salone. This witness was free on probation, but the other three witnesses were prisoners serving various sentences for violations of the narcotics laws.

When the witnesses persisted in their refusal the trial court appointed attorneys to represent them. Time was afforded and consultations were had. The court repeated its efforts to have them testify but without success and the "witnesses" were cited for contempt. The prosecution then proceeded with the witness Salone who was willing to testify and who did so. Then the Government offered the testimony of Willie C. Blue and Larry "Bo" Bailey from the transcript of the former trial of these appellants on the same charges. The appellants objected but the court allowed the transcript of the two witnesses' testimony to be read to the jury. This included all the testimony of these witnesses at the prior trial which was given in the presence of the jury including cross-examination. The trial court permitted this to be done on the ground that the testimony was unavailable since the witness, although called and present in court, refused to testify. The trial court in making its ruling referred to Johnson v. People, 152 Colo. 586, 384 P. 2d 454 (Colo.); State v. Stewart, 85 Kan. 404, 116 P. 489; People v. Pickett, 339 Mich. 294, 63 N.W.2d 681, 45 A.L. R.2d 1341.

On this appeal, appellants contend that they have been denied their Sixth Amendment right of confrontation, since witnesses Blue and Bailey were not "unavailable," citing Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L. Ed. 409 (1895).

The appellants also rely heavily on the recent Supreme Court case of Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L. Ed.2d 255, decided on April 23, 1968. In that case, the Court reversed this Circuit, which had affirmed the district court's holding that it was proper to admit the reading of testimony given at a former preliminary hearing because the witness was outside the jurisdiction of the court. After citing the rule regarding the right of confrontation as stated in Mattox, supra, and the fact that this Sixth Amendment right of confrontation is applicable to the states through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400 at 405, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), Justice Marshall for the Court stated:

"It is true that there has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant. E. g., Mattox v. United States, supra (witnesses who testified in original trial died prior to the second trial). This exception has been explained as arising from necessity and has been justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement. See 5 Wigmore, Evidence §§ 1395-1396, 1402 (2d ed. 1940); C. McCormick, Evidence §§ 231, 234 (1954)."

The Court in Barber further discussed the applicable standards.

In the case before us the facts place it well within the permitted use under Pointer v. Texas, and Barber v. Page. We consider, as did the trial court, that the important element is whether the testimony of the witness is sought and is available and not whether the witness's body is available. This was stated in the cases referred to by the trial court, cited above, and also in Rodriguez v. Nelson, D.C., 286 F.Supp. 321. The record here shows that the trial judge did all that was reasonable and proper to have the witnesses testify. See Pleau v. State, 255 Wis. 362, 38 N.W.2d 496. We hold that the trial judge was not in error in permitting the use of the witnesses' testimony at the prior trial under the circumstances and in the manner he did.

Appellant Gladney further asserts that even though such testimony may have been properly admitted, the fact that the trial judge failed to explain to the jury why the testimony was read, rather than given by the witnesses themselves, constituted reversible error. Appellant offers no authority to support such contention. The trial judge stated to counsel on this point that there had been considerable publicity at the first trial of this case...