Moreland v. United States

• Decision Date: 26 September 1959
• Docket Number: No. 5881.,5881.
• Citation: 270 F.2d 887
• Parties: Emeary MORELAND, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

270 F.2d 887 (1959)

Emeary MORELAND, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 5881.

United States Court of Appeals Tenth Circuit.

September 26, 1959.

Marilyn Cimino, Colorado Springs, Colo., for appellant.

Jack K. Anderson, Asst. U. S. Atty., Denver, Colo. (Donald E. Kelley, U. S. Atty., Denver, Colo., on the brief), for appellee.

Before MURRAH, Chief Judge, and PHILLIPS and BRATTON, Circuit Judges.

PHILLIPS, Circuit Judge.

Moreland was charged by information with a violation of 18 U.S.C. § 2114. The information charged that on September 28, 1957, in the City of Denver, District of Colorado, Moreland did rob and steal money and property of the United States from William H. Coker, who was lawfully in charge, control and custody thereof, at a postal contract station in Denver, Colorado, and that in effecting and attempting to effect such robbery Moreland did put the life of Coker in jeopardy by the use of a dangerous weapon.

On November 29, 1957, Moreland appeared in person and by counsel of his own choosing, was duly arraigned and entered a plea of not guilty. Thereafter, he was tried, convicted and sentenced and has appealed.

At the trial it was stipulated by counsel for the United States and for Moreland that on September 28, 1957, a postal contract station was located at 2645 Welton Street in Denver, Colorado; that Coker was the contractor and in charge thereof; that at that time and place $34.23 in cash, 188 blank United States postal money orders and a money order validating stamp, property of the United States, were taken by an individual through the use of a dangerous weapon, which placed Coker's life in danger.

The facts with respect to the robbery, as charged in the information, were testified to by Coker at the trial and he also identified Moreland and testified that he committed the robbery.

Moreland testified in his own behalf at the trial. In response to questions by his counsel, Moreland testified that he had been convicted of a felony on two occasions; once for burglary in Tulsa, Oklahoma, in 1948, and once for larceny in Wichita, Kansas, in 1952, and that neither of such felonies involved armed robbery or the use of a gun.

On cross-examination the Assistant United States Attorney asked Moreland whether the original charge of the felony to which he pleaded guilty in 1952 was not armed robbery, the Assistant United States Attorney having information that such was the original charge, but that Moreland was permitted to plead guilty to a lesser offense. When the question was asked, counsel for Moreland asked leave to approach the bench. Leave was granted and counsel for Moreland stated that the question was improper. The court, in effect, told both counsel for Moreland and the United States that the question was improper. Counsel for Moreland then stated that he would like to see the witness respond to the question before he made a motion. The court said, "Then you should have let him respond." Counsel for Moreland stated he would have to make the objection. The court then stated, "Then I will sustain it and he won't answer." Counsel for Moreland then stated, "I haven't objected to the question; I asked permission to approach the bench, and if there is no objection the Court can't strike it. I will let the question be answered." The Assistant United States Attorney then asked Moreland whether he could answer the question. Moreland answered, "No." He may have intended to deny that the original charge involved armed robbery, or he may have intended to state that he could not answer the question. No effort was made to clarify his answer. Counsel for Moreland then moved for a mistrial. The court then stated:

"* * * The Court indicated immediately prior to this time when counsel came to the bench that if an objection were made he would not permit the answer. Knowing that, counsel went ahead and didn\'t make any objection and permitted the witness to answer, so now the only thing left for the Court to do is to merely instruct the jury to disregard it and proceed with the trial. The motion for mistrial is denied."

The court then properly instructed the jury that the question was improper and that they should completely disregard the question and that the question should carry no implication whatsoever.

In his direct examination at the trial Moreland specifically denied that he committed the robbery. He also undertook to establish an alibi.

Two police officers of the City and County of Denver took Moreland from the City Jail to the Post Office Building for arraignment before the United States Commissioner and then returned him to the City Jail. On the cross-examination of the defendant he was asked by the Assistant United States Attorney whether he had a conversation with the police officers at that time and he answered, in effect, in the affirmative. Moreland was then asked, "I will ask you to state whether or not the officers stated to you in the automobile driving back there, `Moreland, since you have been faced and accused and identified by Mr. Coker you haven't admitted or denied this?' Did they make that statement to you?"

Over objection he was permitted to answer and he answered that he did not remember. He was then asked whether he did not state to the officers, "I won't admit nor I won't deny this, but what kind of a deal could I make?" He was then asked whether, in response to that part of his answer, the officers did not state to him:

"We don\'t make deals; you are a federal prisoner. When you went before the Judge or the Commissioner you are no longer our prisoner. Anything you say will have

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