Reed v. United States, 9107.

• Decision Date: 23 May 1967
• Docket Number: No. 9107.,9107.
• Citation: 377 F.2d 891
• Parties: Alan Eugene REED, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

377 F.2d 891 (1967)

Alan Eugene REED, Appellant, v. UNITED STATES of America, Appellee.

No. 9107.

United States Court of Appeals Tenth Circuit.

May 23, 1967.

Martin C. Crawn, Kansas City, Kan., for appellant.

Newell A. George, Kansas City, Kan. (Benjamin E. Franklin, Kansas City, Kan., with him on brief), for appellee.

Before MURRAH, Chief Judge, and PICKETT and HICKEY, Circuit Judges.

MURRAH, Chief Judge.

Appellant, Alan Eugene Reed, and his co-defendant, Ivan Daniel Neighbors, who has not appealed, were convicted by a jury on an information charging them with wilful and malicious murder upon United States lands in violation of 18 U.S.C. §§ 1111-1112. Appellant's motion for new trial was denied, and he was sentenced to sixty years imprisonment.

On this appeal Reed has asserted three grounds of error: (1) insufficiency of the evidence to support a conviction; (2) admittance into evidence of a knife purported to be the murder weapon; and (3) failure to show a motive for committing the crime.

The Government's case is concededly based upon circumstantial evidence — there was no eye witness to the murder. But, even so, the Government's case may very well be based upon circumstantial evidence. We view such evidence only to determine whether, believing the Government's proof and disbelieving the defendant's countervailing proof, the jury was justified in finding beyond a reasonable doubt that the defendant was guilty of the offense charged. See Jordan v. United States, 10 Cir., 370 F.2d 126; Williams v. United States, 10 Cir., 368 F.2d 972, 975; Real v. United States, 10 Cir., 326 F.2d 441, and cases cited.

The evidence tending to support the Government's case reflects that Reed and Neighbors, both inmates at the Federal Penitentiary in Leavenworth, Kansas, had been friends for many years and were "fall partners", i.e. they had been convicted of the same crime and were serving identical sentences; that since their confinement at Leavenworth, they had been constant companions even though Neighbors lived in cellhouse B while Reed lived in cellhouse C. On October 29, 1965, Grady Armstrong, a prisoner in B cellhouse, died of cut and stab wounds inflicted upon him in his cell. Sixteen witnesses testified to the circumstances relating to the crime, but we need narrate only that testimony which seems critical to the Government's case.

An inmate of cellhouse B testified for the Government to the effect that on or about October 26, 1965, Armstrong was lying in his cell on the fourth gallery¹ when there was "some loud noise" on the first floor; that he came out of his cell, leaned out and yelled down to Neighbors on the first floor "something about keep quiet, and they had a little exchange of words" in which "Somebody referred to somebody as a punk; I don't remember which one." He also testified that two or three days later on October 29 at about 5:00 p.m. he was going up the stairway from the third gallery to the fourth when he heard a scream; that when he reached the fourth gallery, he stepped back into the "cutoff", i.e. the opening between the two ends of the cell block", and saw two men running, one of whom was Neighbors and the other he could not identify; that the men ran down the steps and out the side doorway toward the yard; and that an officer pursued them down the stairs to the door where he stopped before running out into the yard.

Officer Stauffer testified as the Government's chief witness to the effect that on the day of the murder he was patrolling the third, fourth and fifth galleries in cellhouse B during the evening mealtime²; that at approximately 5:00 p.m. he had made his round of the fourth gallery and had noticed Armstrong lying in his cell "supposedly asleep" with a towel over his forehead; that he continued his patrol on the fifth gallery, came back down the stairs and was at the corner of the fourth gallery when he heard a man scream; that as he turned the corner he saw two inmates, whom he later identified as Reed and Neighbors, emerging from a cell with a third immediately behind them "clutching his chest with blood coming out from the wounds he had received prior * * * to me coming to the fourth gallery"; that the other two inmates looked his way, hesitated for a moment and "left"; that he pursued them (past the deceased who had fallen to the floor) down the stairs, through the center part of the cellhouse and saw them run through the door to the yard; that he could see one of the inmates still running, and as he approached the open door "I saw an inmate waiting there for me with a knife"; that "I looked at his face and realized the situation and I looked at the knife and it still had blood on it. I...