Minor v. United States, No. 18408.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtVAN OOSTERHOUT, GIBSON and HEANEY, Circuit
Citation375 F.2d 170
PartiesAsa Hurrial MINOR, Jr., Appellant, v. UNITED STATES of America, Appellee.
Docket NumberNo. 18408.
Decision Date21 April 1967

375 F.2d 170 (1967)

Asa Hurrial MINOR, Jr., Appellant,
v.
UNITED STATES of America, Appellee.

No. 18408.

United States Court of Appeals Eighth Circuit.

March 13, 1967.

Rehearing Denied April 21, 1967.


375 F.2d 171

John W. Walker, Little Rock, Ark., for appellant and filed brief.

Lindsey J. Fairley, Asst. U. S. Atty., Little Rock, Ark., for appellee and filed brief with Robert D. Smith, Jr., U. S. Atty., Little Rock, Ark.

Before VAN OOSTERHOUT, GIBSON and HEANEY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by the defendant Asa Hurrial Minor, Jr., from his conviction by a jury on Count II of an indictment charging him with the transportation of a specifically described Chevrolet automobile in interstate commerce from Indiana to Arkansas, knowing said motor vehicle

375 F.2d 172
to have been stolen in violation of 18 U.S.C.A. § 2312. Defendant was sentenced to two years imprisonment. The court on its own motion dismissed Count I of the indictment which charged interstate transportation of another automobile upon the ground that proof that such automobile was stolen was insufficient

Defendant represented himself in the trial court. His right to counsel, including right to court-appointed counsel without expense to him, was fully explained. Defendant persistently declined counsel and insisted upon representing himself. The court just prior to the opening of the trial again offered to provide counsel. Defendant has not, either in the trial or here, raised the issue that he has been deprived of his constitutional right to be represented by counsel. He is represented on this appeal by competent counsel and raises no brief point that his waiver of counsel in the trial court was not knowingly and intelligently made, nor does he in any way intimate or suggest that he has been wrongly deprived of his constitutional right to counsel. Hence, the issue of denial to defendant of his right of counsel is not now before us.

Defendant urges he is entitled to a reversal for the following reasons: (1) Insufficiency of the evidence to support the guilty verdict. (2) Admission of prejudicial evidence and failure to give instruction limiting the consideration of such evidence. (3) The jury was unconstitutionally selected.

None of the errors here asserted was raised in the trial court. No motion for acquittal was made; no objection was made to any evidence offered; no exception to or request for instructions was made and there was no challenge to the jury panel. Thus absent a plain error situation, there is nothing before us for review. "A trial judge ordinarily should not be held to have erred in not deciding correctly a question that he was never asked to decide." Page v. United States, 8 Cir., 282 F.2d 807, 810; Petschl v. United States, 8 Cir., 369 F.2d 769.

Defendant attempts to excuse his failure to preserve errors here asserted by a contention that he is unskilled and unknowledgeable in the law. It is well settled that the right to counsel may be waived as long as the waiver is knowingly and intelligently made. Moore v. State of Michigan, 355 U.S. 155, 161, 78 S.Ct. 191, 2 L.Ed.2d 167; Carter v. People of State of Illinois, 329 U.S. 173, 177, 67 S.Ct. 216, 91 L.Ed. 172; Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 82 L.Ed. 1461.

The Constitution does not force an unwanted attorney upon a defendant. Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268; United States v. Washington, 3 Cir., 341 F.2d 277, 285. The accused may before trial elect to conduct his own defense. Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356; United States ex rel. Maldonado v. Denno, 2 Cir., 348 F.2d 12, 15; Johnson v. United States, 8 Cir., 318 F.2d 855, 856; Butler v. United States, 8 Cir., 317 F.2d 249, 258. However, as aptly stated by the Court of Appeals for the Fifth Circuit: "Once it is found * * * that such an accused has properly waived his right to counsel, the effects flowing from that decision must be accepted by him, together with the benefits which he presumably sought to obtain therefrom." Smith v. United States, 5 Cir., 216 F.2d 724, 727. Thus, when accused elects to waive his constitutionally guaranteed right of counsel, he does so at his own risk and must accept the consequences of his action. United States v. Redfield, D.C.Nev., 197 F.Supp. 559, 572, affirmed on the basis of the trial court's opinion, 9 Cir., 295 F.2d 249.

Sound policies of judicial administration as prescribed by the Rules of Criminal Procedure should apply to all trials whether conducted by counsel or by a defendant. Otherwise, defendant would in practical effect be given two trials, one in which he conducts his own defense and if unsuccessful, another trial with representation by counsel.

375 F.2d 173

In the event the trial results in a clear miscarriage of justice, the 52(b) plain error rule affords a defendant representing himself all of the protection to which he is justly entitled when he has knowingly and intelligently elected to waive counsel and has deliberately chosen to act as his own attorney.

A careful examination of the record shows that no plain error has been committed and that defendant has had in all respects a fair trial. Defendant by representing himself secured many advantages that would not have been available to him had he been represented by counsel. Defendant was permitted to testify in narrative form and was permitted to say everything that he desired to without restriction. He made his own opening statement to the jury, his own closing argument, and he was allowed to supplement his argument after the court had instructed the jury. Defendant cross-examined the witnesses and was given much more freedom than would have been afforded counsel. As heretofore pointed out, the court on its own motion at the close of the Government's case dismissed Count I and advised the defendant that he would not have to meet such charge. On several occasions, the court restricted the Government's testimony on its own motion. The instructions given are simple, easily understood and fair.

Resort to the plain error rule is appropriate only in exceptional cases where such course is necessary to prevent a clear miscarriage of justice. Petschl v. United States, supra; Page v. United States, supra; Johnson v. United States, 8 Cir., 362 F.2d 43, 46; West v. United States, 8 Cir., 359 F.2d 50, 53; Gendron v. United States, 8 Cir., 295 F.2d 897, 902.

We find no plain error requiring a reversal has been committed and affirm the conviction.

The evidence is clearly sufficient to support the guilty verdict. Title 18 U.S.C.A. § 2312 reads: "Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both."

There is direct proof from the owner that the precise car involved in this offense was stolen from the Placke Chevrolet Company in St. Louis, Missouri, on September 24, 1964, and was reported stolen to the police at 7:30 p. m. on that date. The invoice of the manufacturer to the Placke Chevrolet Company showing ownership of the car in such company was introduced. After the car was recovered by the authorities, it was returned to such owner. Such evidence is not contradicted. Defendant himself stated to the jury, "I believe this vehicle was stolen on the 24th of September. I came into acquisition of it about one month later."

Defendant specifically admitted that he transported the car from Indiana to Arkansas where it was recovered. Thus the only element of the offense with respect to which any dispute exists is whether defendant knew the automobile was stolen at the time he transported it to Arkansas.

The court in an instruction to the jury, not excepted to and not asserted to be error upon this appeal, told the jury:

"Possession of property recently stolen, if not satisfactorily explained, is ordinarily a circumstance from which the jury may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession knew that the property had been stolen, * * *"

The foregoing instruction contains a proper statement of the applicable law. Lee v. United States, 8 Cir., 363 F.2d 469, 474; Cloud v. United States, 8 Cir., 361 F.2d 627, 629; Harding v. United States, 8 Cir., 337 F.2d 254, 257.

As we point out in Harding, supra, the instruction here given differs materially from the supplemental instruction in Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350, relied upon by the defendant.

375 F.2d 174

Defendant's defense is based upon his testimony that he was holding the car as security for a loan to Ellsworth Turner. He said that he had a chattel mortgage on the car but produced no evidence to prove that he did. The jury was not compelled to accept defendant's uncorroborated explanation of his possession of the car.

Defendant's contention that plain error was committed in receiving certain evidence, not objected to, is without merit. Defendant went to trial on a two-count indictment charging two transportation offenses involving separate stolen automobiles. Such counts were properly joined in the same indictment under Rule 8, Fed.R.Crim.P., and no Rule 14 request for severance was made. Trial upon all counts of indictments such as this is the usual procedure. While Count I was before the jury, some evidence was introduced with respect to the stealing of the car there involved and the registration and transportation thereof. The transactions involved in each of the counts were closely related. Both cars were discovered at the same place and at the same time. The evidence offered was competent to support Count I at the time it was offered. Count I was subsequently dismissed by the court on its own motion. The defendant has failed to demonstrate...

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32 practice notes
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 5, 1970
    ...375 U.S. 836, 838, 84 S.Ct. 67, 77, 11 L.Ed.2d 65; Johnson v. United States, 318 F.2d 855, 856 (8 Cir. 1963); Minor v. United States, 375 F.2d 170, 172 (8 Cir. 1967), cert. denied, 389 U.S. 882, 88 S.Ct. 131, 19 L.Ed.2d The South Dakota court has gone so far as to say that a defendant has t......
  • McGee v. Norman, No. 4:11CV2212SNLJ (NCC)
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • December 24, 2014
    ...407, 410 (8th Cir. 1983) (finding admission of hearsay evidence harmless where evidence was cumulative) (citing Minor v. United States, 375 F.2d 170 (8th Cir. 1967) (admission of cumulative hearsay not plain error). As stated by the Missouri appellate court, the officer's allegedly objectio......
  • McCracken v. State, No. 1791
    • United States
    • Supreme Court of Alaska (US)
    • January 11, 1974
    ...v. United States, 418 F.2d 100 (7th Cir. 1969), cert. denied, 397 U.S. 1048, 90 S.Ct. 1378, 25 L.Ed.2d 660 (1970); Minor v. United States, 375 F.2d 170 (8th Cir. 1967); United States v. Burkeen, 355 F.2d 241 (6th Cir. 1966); Juelich v. United States, 342 F.2d 29 (5th Cir. 1965); United Stat......
  • United States v. Edwards, No. 20327.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 19, 1971
    ...counsel to assist him in his own defense. Under these circumstances, Edwards proceeded pro se at his own risk. Minor v. United States, 375 F.2d 170, 172 (8th Cir.), cert. denied, 389 U.S. 882, 88 S.Ct. 131, 19 L.Ed.2d 177 Judgment affirmed. --------Notes: 1 That perjury indictment alleged t......
  • Request a trial to view additional results
32 cases
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 5, 1970
    ...375 U.S. 836, 838, 84 S.Ct. 67, 77, 11 L.Ed.2d 65; Johnson v. United States, 318 F.2d 855, 856 (8 Cir. 1963); Minor v. United States, 375 F.2d 170, 172 (8 Cir. 1967), cert. denied, 389 U.S. 882, 88 S.Ct. 131, 19 L.Ed.2d The South Dakota court has gone so far as to say that a defendant has t......
  • McGee v. Norman, No. 4:11CV2212SNLJ (NCC)
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • December 24, 2014
    ...407, 410 (8th Cir. 1983) (finding admission of hearsay evidence harmless where evidence was cumulative) (citing Minor v. United States, 375 F.2d 170 (8th Cir. 1967) (admission of cumulative hearsay not plain error). As stated by the Missouri appellate court, the officer's allegedly objectio......
  • McCracken v. State, No. 1791
    • United States
    • Supreme Court of Alaska (US)
    • January 11, 1974
    ...v. United States, 418 F.2d 100 (7th Cir. 1969), cert. denied, 397 U.S. 1048, 90 S.Ct. 1378, 25 L.Ed.2d 660 (1970); Minor v. United States, 375 F.2d 170 (8th Cir. 1967); United States v. Burkeen, 355 F.2d 241 (6th Cir. 1966); Juelich v. United States, 342 F.2d 29 (5th Cir. 1965); United Stat......
  • United States v. Edwards, No. 20327.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 19, 1971
    ...counsel to assist him in his own defense. Under these circumstances, Edwards proceeded pro se at his own risk. Minor v. United States, 375 F.2d 170, 172 (8th Cir.), cert. denied, 389 U.S. 882, 88 S.Ct. 131, 19 L.Ed.2d 177 Judgment affirmed. --------Notes: 1 That perjury indictment alleged t......
  • Request a trial to view additional results

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