McKissick v. United States, 23669.

• Decision Date: 30 June 1967
• Docket Number: No. 23669.,23669.
• Citation: 379 F.2d 754
• Parties: Bobby Jean McKISSICK, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

379 F.2d 754 (1967)

Bobby Jean McKISSICK, Appellant, v. UNITED STATES of America, Appellee.

No. 23669.

United States Court of Appeals Fifth Circuit.

June 30, 1967.

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Robert E. Coburn, Jr., L. H. Walden, Montgomery, Ala., for appellant.

Ben Hardeman, U. S. Atty., J. O. Sentell, Asst. U. S. Atty., Montgomery, Ala., for appellee.

Before RIVES, COLEMAN and GODBOLD, Circuit Judges.

COLEMAN, Circuit Judge.

Bobby Jean McKissick was convicted by a jury on a two count information charging violations of §§ 331 and 333, Title 21, U.S.C. (violation of Food, Drug, and Cosmetics Act). He was sentenced to imprisonment for consecutive terms of one year each. On the record before us, the judgment of the District Court must be vacated and remanded for further proceedings as herein set forth.

Appellant was convicted on the testimony of an Inspector of the United States Food and Drug Administration that appellant, at his drug store in Montgomery, Alabama, on December 19, 1963, sold him dl-Amphetamine Sulfate tablets and on January 21, 1964, sold him a number of SYNDROX Methamphetamine Hydrochloride tablets, both sales being without a prescription therefor from one licensed to administer the drug.

The information was filed December 28, 1964. There was a continuance in the Spring of 1965. A trial was begun on November 23, 1965, which ended in a mistrial, as will be discussed later. The trial from which this appeal was taken commenced April 19, 1966.

Of the seven errors assigned for the reversal of this conviction, we are convinced that only three justify discussion.

1. The denial of a continuance in April, 1966.

It appears undisputed in this record that appellant was not notified finally of the withdrawal of his original counsel until February 17, 1966. This was in the form of a letter and appellant was warned that he would be subject to being tried again from and after April 18, 1966. The record is silent as to what appellant did, if anything, about securing other counsel between February 17 and April 1. In any event, he retained present counsel on April 1. On April 5 new counsel moved for a continuance until the next regular term on the ground that they had been unable to obtain a transcript of the former trial, that the court reporter said it could not be furnished until April 18, and that additional time was necessary adequately to prepare for the defense of the case. The trial was scheduled to begin April 19. The District Judge denied this motion for continuance on the ground that there had been a prior continuance in the Spring of 1965, that there had been a mistrial in November, 1965 (describing what prompted that mistrial, R. 183), that the transcript of McKissick's testimony in the earlier trial had been supplied counsel as of April 6, and that the entire transcript of the other proceedings would be made available not later than April 14. At the actual trial only three witnesses testified, they being the Inspector and two employees in the drug store.

Again, it is well settled that motions for continuance are addressed to the sound discretion of the trial judge. His action thereon will not be reversed unless there is an abuse of discretion. In view of the considerations recited by the trial court in denying the continuance, remembering that there was only one witness for the prosecution and only two for the defense, we are unable to say that there was an abuse of discretion in this instance, cf. Joseph v. United States, 5 Cir., 1965, 343 F.2d 755, cert. denied, 382 U.S. 828, 86 S.Ct. 65, 15 L.Ed.2d 73; Ray v. United States, 5 Cir., 1965, 352 F.2d 521.

2. Allegedly improper closing argument.

It is next contended that in his closing argument the United States Attorney improperly commented upon McKissick's failure to testify in his own defense. The allegedly offending comment was as follows:

"I would be willing to bet that this is the first time that you have ever heard of a defense by alibi by inference * * *. There hasn\'t been one witness from that witness stand to tell you where McKissick was, altho they had witnesses up there."

"You know and I know that if a man had gone somewhere else on that day, or either of those days, somebody would have seen him leave; somebody would have seen him go somewhere; somebody would have seen him come back * * *."

We recently discussed this problem in Davis v. United States, 357 F.2d 438, 441, April 18, 1966. Prior precedents in this Circuit are there collated. We said:

"The facts and circumstances of each case must be carefully analyzed to determine `whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.\'"

The employees of this appellant testified to their activities in the drug store and its method of operation so as to raise a reasonable doubt, if the jury had chosen to see it that way, as to whether McKissick was in the store on the dates of the alleged sales. They both declined to testify of their own recollection that he was, in fact, absent. We think the argument of the prosecutor was fairly directed to this line of testimony and that the jury would know he was simply discussing what the lady employees had said.

The Inspector testified that he dealt only with McKissick. Obviously if the prosecutor had said no one contradicted what the Inspector said about the sales then we would have a different case.

3. The question of former jeopardy, raised for the first time on appeal, growing out of the mistrial declared November 24, 1965.

As previously indicated, the first trial in this prosecution was concluded by a court ordered mistrial on November 24, 1965. According to the record before us, McKissick took the stand in his own behalf on November 23. At the conclusion of his testimony, the Court dismissed the jury for the day (R. 75). He then asked McKissick if he had been sworn before he started testifying. The witness responded that he had. The Court then propounded forty-one questions in the nature of cross-examination. Upon the completion of this interrogation, the Court spoke as follows:

"R. 85. There is the worst case of perjury in this case I have ever seen since I have been on the Bench; the drug agent or this witness, one, did it. I don\'t know who; I don\'t know which one of them did it."

When Court convened the next morning, trial counsel for McKissick requested a conference in chambers. The record does not reveal that McKissick was present. The record recites:

"IN CHAMBERS, with, in addition to the Court, there being present Mr. Hardeman, Mr. Sentell prosecuting counsel, Mr. Lowery, and Mr. Ira DeMent defense counsel."

Counsel for McKissick, Mr. Lowery, then made the following statement:

"I would like for the record to show that the defendant, McKissick, Bobby Jean McKissick, called me by telephone last night about nine o\'clock, and after a conversation admitted the fact that he had perjured himself in the trial yesterday, which was November 23; and under those circumstances, I do not feel that I can continue to represent him under these circumstances. And I — therefore, I believe it is proper that I ask the court for a mistrial; I believe that would be proper."

The Court then said:

"And I don\'t see that I have any alternative except to declare a mistrial in the case, because that leaves him without counsel insofar as this case is concerned."

Upon returning to the courtroom, the Court then made the following statement:

"Now, to the jurors in the case of the United States against Bobby Jean McKissick; for the reasons stated to the court, which have been made a part of the record in this case, it is necessary that the court declare a mistrial in the case, and the trial of the United States against Bobby Jean McKissick cannot and will not continue at this time. Let me see the court file. Counsel for the defendant, McKissick case, are excused; the defendant is excused until further notice."

It is not shown in this record that McKissick was present at or was ever informed of the above statement made by his own counsel. As already pointed out, the record does not reveal his presence at the conference in chambers, nor does it reveal any reason for his absence. Obviously, he was not informed in open court as to the reason for the mistrial. There is nothing to indicate that being fully advised of his rights he intelligently waived them. The record does not show that he had an opportunity to confront or to cross examine. Apparently, he had no opportunity to explain or deny. For the first time, on this appeal and not in the Court below, new counsel now contend that granting the mistrial under these circumstances was legally improper and the defendant is now entitled to the constitutional protection against second jeopardy for the same offense.

The first difficulty in this contention, of course, is that (at least until the adoption of the Federal Rules of Criminal Procedure) it was well settled in the federal decisions that double jeopardy was a defense which had to be pleaded specially; it could not be raised for the first time by a motion for a new trial or on appeal, cf. Brady v. United States, 8 Cir., 1928, 24 F.2d 399, and the wealth of cases therein cited. In 1959, long after the adoption of the Federal Rules of Criminal Procedure, in United States v. Hoyland, 264 F.2d 346, cert. denied, 361 U.S. 845, 80 S.Ct. 98, 4 L.Ed.2d 83, the Seventh Circuit held to like effect, citing Brady and other cases. In Hoyland, however, there had been a plea of guilty. The Court quoted what had been said in Caballero v. Hudspeth, 10 Cir., 1940, 114 F.2d 545:

"The right to not be placed in jeopardy twice for the same offense is a personal right. It is an immunity granted to the witness by our constitution, and may be waived. The plea of guilty by the defendant constitutes a waiver of this right. At no stage of the

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