McMillian v. United States, 22884.
| Decision Date | 19 July 1966 |
| Docket Number | No. 22884.,22884. |
| Citation | 363 F.2d 165 |
| Parties | Carvell McMILLIAN, Mary Lynn McMillian, Bobby McMillian and John William McMillian, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
S. Gunter Toney, Tallahassee, Fla., for appellants.
Stewart J. Carrouth, Asst. U. S. Atty., Clinton Ashmore, U. S. Atty., Tallahassee, Fla., for appellee.
Before BROWN and COLEMAN, Circuit Judges, and DAWKINS, District Judge.
This appeal is from the convictions of four defendants1 who were jointly indicted in five counts for separate violations of the liquor laws.2 The jury returned guilty verdicts against two of the appellants on two counts and against the other two on three counts. The appeal may be disposed of upon two of appellants' specifications of error: (1) the admission of hearsay evidence creating undue prejudice in the minds of the jury, uncured by the trial court's lengthy instructions to disregard, and (2) the government attorney's improper argument before the jury. We reverse and remand for a new trial.
The facts do not require detailed examination. Briefly stated, federal officers on December 9, 1964, placed an unregistered still under surveillance within approximately 100 yards of the home of two of the appellants. After watching the still for about two hours without observing any activities there, the officers approached the house and asked to see one of the occupants. Upon being informed that an investigation was being made of an illegal whiskey distillery, two of the appellants separately replied in such a manner as to focus suspicion upon them and cause their immediate arrest. In the immediate vicinity of the house the agents observed a number of empty jugs which had earlier contained moonshine, and an automobile in which a full gallon container of unstamped alcohol was found. Upon discovery of the whiskey in the automobile, the two appellants, husband and wife, who owned it were arrested. Following each arrest, the agent advised each of the appellants of his right to remain silent or to confer with counsel.
In addition, a large stash of sugar and containers was found some 30 yards from the house, along with other evidence linking together the automobile, the illegal still, and the occupants of the house.
During the course of the prosecutor's direct examination of the agent who had made the arrests, he inquired as to the agent's prior knowledge concerning the automobile in which the unstamped whiskey had been found. Over defense counsel's objection, the court allowed testimony that the agent had been told by a confidential informer that the same car, identified by color and by its license number, had been used to transport illicit whiskey and sugar between Tallahassee, Florida, and Walton County, Florida. The testimony was as follows:
Thereupon a defense motion for a mistrial was overruled; but the trial judge subsequently found the testimony to have been improperly admitted, and instructed the jury at length to disregard the agent's statement as to what some other person had told him.
Appellants contend that the damage was done, that they had been unduly prejudiced in the eyes of the jury by this admittedly irrelevant, hearsay evidence. We agree. In our recent decision in Landsdown v. United States, 348 F.2d 405 (5 Cir. 1965), we held that where law enforcement personnel testified that they had received a radio call in connection with attempts to sell some jewelry by two suspects, one of which was the appellant there, and that a burglary complaint had come in over the telephone, such testimony was irrelevant to the case, inadmissible as hearsay, and so unduly prejudicial as to constitute plain error under Fed.R.Crim.P. 52(b).
Perhaps more nearly in point is Mattson v. United States, 7 F.2d 427 (8 Cir. 1925), where a conviction for violation of the Prohibition laws was reversed because the agent had asserted that he had had many complaints that the defendant was selling liquor. It was held that the agent's statement was "clearly inadmissible and fatally prejudicial to the case of the defendant, because it was bald hearsay, or hearsay of hearsay." See also Whiting v. United States, 296 F.2d 512 (1 Cir. 1961).
Although it is the general rule, Conner v. United States, 322 F.2d 647 (5 Cir. 1963), that an erroneous admission of evidence is cured by instructions that the jury disregard it, where the substantial rights of the defendant were not adversely affected — that is, where his guilt is clear and error, if any occurred, was harmless — we are of the opinion that the erroneous admission of the informer's statement here was so unduly prejudicial as to constitute reversible error notwithstanding the court's subsequent instructions to disregard.
Turning now to a consideration of certain remarks made by the prosecuting attorney in his closing argument to the jury, in rebuttal to defense counsel's argument, we find the following:
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