Nutt v. United States, 7561.

• Decision Date: 09 November 1964
• Docket Number: No. 7561.,7561.
• Citation: 335 F.2d 817
• Parties: Herschel Quinton NUTT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

335 F.2d 817 (1964)

Herschel Quinton NUTT, Appellant, v. UNITED STATES of America, Appellee.

No. 7561.

United States Court of Appeals Tenth Circuit.

July 17, 1964.

Certiorari Denied November 9, 1964.

Paul R. McDaniel, Oklahoma City, Okl. (James L. Hall, Jr., Oklahoma City, Okl., on the brief), for appellant.

John E. Green, Asst. U. S. Atty., Oklahoma City, Okl. (B. Andrew Potter, U. S. Atty., Oklahoma City, Okl., on the brief), for appellee.

Before PHILLIPS and SETH, Circuit Judges, and ARRAJ, District Judge.

Certiorari Denied November 9, 1964. See 85 S.Ct. 203.

SETH, Circuit Judge.

This is an appeal in forma pauperis from a jury trial and conviction in the United States District Court for the Western District of Oklahoma on a three count information charging appellant with violation of 18 U.S.C. § 1708 (possession of stolen mail), and 18 U.S.C. § 495 (forgery to receive money from the United States and uttering and publishing such forged writing as true).

Appellant argues that the defense made by his retained attorney was so inadequate as to amount to a denial of his rights to representation by counsel. Appellant in his brief describes a series of incidents during the trial at which he states that his attorney did not take the proper action by way of objection, cross-examination, failure to move for a directed verdict or a new trial, and failure to request instructions. The record does not show that appellant at any time indicated to the trial court that he was dissatisfied with his attorney, or otherwise brought these matters he now raises to the attention of the court.

The general standard to be applied was stated by this court in Beckett v. Hudspeth, 131 F.2d 195 (10th Cir.), to be that the Sixth Amendment, in its guarantee of the assistance of counsel, means the assistance is to be effective, as distinguished from bad faith, sham, mere pretense, or lack of opportunity for conference and preparation. Moss v. Hunter, 167 F.2d 683 (10th Cir.); Hester v. United States, 303 F. 2d 47 (10th Cir.); Frand v. United States, 301 F.2d 102 (10th Cir.); Crum v. Hunter, 151 F.2d 359 (10th Cir.); Shepherd v. Hunter, 163 F.2d 872 (10th Cir.); Pierce v. Hudspeth, 126 F.2d 337 (10th Cir.); Merritt v. Hunter, 170 F.2d 739 (10th Cir.); Kinney v. United States, 177 F.2d 895 (10th Cir.). We recently considered the matter in Johnson v. United States, 333 F.2d 371 (10th Cir.).

We find nothing in the record as it is here presented to indicate that appellant's constitutional rights were violated.

Appellant's second major contention is that he was denied his right to a fair trial because, first, the trial judge failed to instruct the jury that testimony concerning appellant's prior criminal convictions could only be considered as affecting credibility. This has reference to a conviction for reckless driving and driving without a license which was brought out on direct examination of the accused, and it was referred to again on cross-examination, and also refers to evidence of several prior felony convictions which appellant brought out in his testimony on direct examination. Appellant argues that the evidence of prior convictions of an accused who has taken the stand in his own defense is generally limited to matters of credibility and the jury should be so instructed, but there were no such instructions given. The record shows that appellant's retained counsel requested no instructions and objected to none given, nor to the omission of instructions on any point. Appellant argues that although the record shows no objection to the omission of such an instruction, the error so affected the substantial rights of the appellant in the case under consideration as to warrant a reversal and a new trial under Rule 52(b) of the Federal Rules of Criminal Procedure.

In United States v. Pennix, 313 F. 2d 524 (4th Cir.), the court reversed because on cross-examination it was brought out that appellant had been arrested some thirty times. This testimony was developed in the cited case on cross-examination, and the testimony referred to the large number of arrests rather than convictions. No attempt was made to limit the testimony to convictions nor to correct such omission by instructions. The cited case is however not in point here where the accused brought out the facts complained of, and where the accused's counsel made no objections or requests for instructions under Rule 30 of the Rules of Criminal Procedure. Appellant seems to be urging the rule that whatever the circumstances, if prior convictions are brought out about defendant-witness, it is reversible error if the trial court does not give specific instructions limiting consideration of the prior convictions to credibility. The cases cited by appellant do not support this result, and we are not prepared to so hold.

In Butler v. United States, 53 F.2d 800 (10th Cir.), one of the errors alleged was that there was evidence admitted concerning transactions other than those set out in the indictment, and the trial court did not charge the jury that such evidence should be considered only so far as it proved intent. The court said: "It would be enough to say that counsel requested no such charge at that time the close of the trial, and took no exception to the court's failure to so charge." See also Berry v. United States, 271 F.2d 775 (5th Cir.). Also in Cleaver v. United States, 238 F.2d 766 (10th Cir.), we held that where evidence is admissible as to one of several defendants it generally must be received and then it becomes the duty of the others to submit instructions limiting its effect, citing Dauer v. United States, 189 F.2d 343 (10th Cir.). In the instant case no such instruction was given nor was it requested, and it is incumbent upon the accused to request such...