Slade v. United States

• Decision Date: 23 June 1959
• Docket Number: No. 17583.,17583.
• Parties: Truby Clarence SLADE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

267 F.2d 834 (1959)

Truby Clarence SLADE, Appellant, v. UNITED STATES of America, Appellee.

No. 17583.

United States Court of Appeals Fifth Circuit.

June 23, 1959.

Zach H. Douglas, Jacksonville, Fla., for appellant.

Wilfred C. Varn, U. S. Atty., F. E. Steinmeyer, III, Asst. U. S. Atty., Tallahassee, Fla., for appellee.

Before JONES, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The question here is whether the jury was adequately instructed on the permissible use of a prior inconsistent statement offered by the Government in impeachment of a key, but hostile, witness.

Slade and Conrad were jointly indicted, tried and convicted on a two-count indictment for illegal possession and removal and concealment of moonshine whiskey. 26 U.S.C.A. §§ 5008(b) (1), 5642, 5632. Only Slade appeals.

This was the prosecution's theme. Florida Highway Officers making a routine patrol on New Years Eve January 1, 1958, saw a bread delivery truck parked unattended on the shoulder of a highway. Examination of the truck disclosed that instead of carrying the staff of life, it was loaded with 60 five-gallon glass jugs of shine. Other officers were summoned by radio for surveillance and, in the hope soon made good, to close in for apprehension of those responsible when and as they would surely return, as they did. Within an hour or so a wrecker, owned and driven by Hardy, followed by a Dodge driven by Slade, arrived at the scene. Shortly Conrad, driving a Plymouth Fury, came from the opposite direction.

An officer from a nearby ambush saw Slade get in the front of the truck and testified that after the arrest Slade had stated that he, Slade, had tied the steering wheel of the truck so that it could be towed by the wrecker back-end-first and raised. The significance of this was to establish active participation by Slade and to charge him with knowledge of the truck's contents then so plainly visible from even a mere glance.

Conrad, so Hardy finally but reluctantly testified, instructed Hardy to follow the Fury to a farmhouse about six miles away. The caravan got underway with the Fury in the van, the wrecker and its disabled tow in the middle with Slade in his Dodge bringing up the rear. As the convoy proceeded, the vanguard got cut off from the main column by a passing railroad train at a crossing. Conrad's Fury stopped and waited on the far side of the track, ostensibly, so he and his companions asserted, to check the skirt on one of his rear fenders. About the time the convoy reformed and got underway, the officers, hovering near at hand, threw up a roadblock, stopped the procession and took cars, wrecker, bread truck, their cargo and occupants to the jail.

The defensive theme, reflected by questions on cross examination, some statements made by Hardy to the claimed surprise of the Government, who vouched for him, and made explicit by testimony of Slade and Conrad, could not hope to overcome physical presence of either or both at the transitory scene of the crime, or their respective physical activities. It sought, rather, to paint the picture of innocent helpfulness by Slade and innocuous coincidence by Conrad.

Only Slade's story really concerns us now. According to him, he was at the B & G Truck Stop, apparently a restaurant and filling station. He was presumably awaiting his girl friend who would shortly arrive with the Conrads who would, at his request, shortly thereafter convey to his pregnant wife then at home the message that he had gone out to help tow a broken-down truck. About this time, he saw Hardy who had driven up in his wrecker. Hardy, whom Slade knew, told Slade that he had received a call to pick up a disabled truck and asked Slade if he could come along to protect his rear since the taillight on the wrecker was out of order. Slade agreed and followed Hardy's wrecker. En route Hardy took the wrong fork and it was Slade who honked him down and got him back on the right track. At the scene of the bread truck, he did nothing. He denied he got in the truck or tied down the steering wheel. One lift cable apparently did come loose and he admitted "holding" that in position as the tow was being rigged. As the officers testified, he brought up the rear of the convoy as it proceeded. It was, he insisted, a great shock to learn that in this innocent act to protect highway travelers from the rear of an unlighted wrecker, he was partaking in this movement of contraband.

As this brief resume reflects, the case against Slade depended largely on the circumstances of Slade and Hardy departing from the B & G Truck Stop and Slade's actions in making up the tow Did Hardy ask Slade to accompany him? Or was Slade the unidentified man who earlier called Hardy and who then told Hardy where the bread truck was? Did Slade actively assist in rigging up the tow, and did he, as observed by the officer, get into the truck and tie down the steering wheel as the officer claimed?

The Government had apparently counted on Hardy as the star witness, and for good reason, as his written statement soon revealed. But Hardy was evasive, equivocal and most unsure on critical points. So much so, that the Court permitted the Government to lay the ground work for claiming surprise and thereafter treating Hardy as a hostile witness. This included specifically identification and introduction in evidence of Hardy's ex parte statement given to Government officers. The statement¹ was direct and categorical in the way it implicated both Slade and Conrad.

Unless positive instructions were given defining a more limited use, it was naturally bound to be effective and persuasive on these critical issues. But no such instructions were given. And no restrictions were imposed. Counsel for both Conrad and Slade in the jury's absence had registered vigorous opposition to admitting the statement at all. And Conrad's counsel, under circumstances which gave Slade the full benefit of the objection, Gardner v. United States, 8 Cir., 1916, 230 F. 575, 580, and in terms sufficient to form the basis for a claim of error, specifically requested the Court to instruct the jury that the statement was to be considered solely for impeachment to determine the credibility of the witness and not as proof of the facts therein stated. The Court, just before the jury returned at which time the statement would be formally introduced, rejected this in emphatic terms.²

After the statement was read into evidence, acknowledged by Hardy to have been signed by him, and Government counsel had cross examined him at length concerning the events described in the statement and Hardy's oral testimony on those points, the Court reflected adherence to this approach. For he gave a special instruction to the jury which did nothing to indicate that throughout the remainder of the case the jury was to make any special or limited or restricted use of this statement. On the contrary, the implication, at least to the mind of jurors unschooled in the law's distinctions, was that the statement, as would any other testimony, was to be considered by them.³

The Judge's preoccupation with Hardy becoming "the Court's witness" was continued in the general charge to the jury. Presumably this was the "charges that the Court will give to you," see note 3, supra. But again there was no direction, affirmatively or negatively, on what the jury was to do with the ex parte statement. Indeed, hearing this sole reference to Hardy, the jury was again justified in thinking that it was for unlimited use.⁴

How the jury regarded this statement is demonstrated beyond question by its own conduct. After apparently extended but inconclusive deliberations, the jury advised the Court it desired to make an inquiry. On return to the courtroom, the jury through the foreman stated their purpose: "We would like to have the statement read signed by Mr. Hardy that was introduced in evidence."

It was here for the first and only time — after the jury had had the statement in their minds during the remainder of the evidence, and after it had been considered in their unsuccessful deliberations — that the Court put any limitations on its use. With obvious and proper concern lest reading this statement might not give it undue prominence, the Court undertook to summarize its legal effect.⁵ Just before this, the Court expressly declared that the statement "was admitted in evidence * * * for the sole purpose of impeaching the testimony of Mr. Hardy."⁶ But there was still no clear distinction drawn between truth of fact stated therein and the general truthfulness of Hardy as a witness. On the contrary, the reference to impeachment — undefined either in its normal usage or that of its technical legal significance — was followed immediately by equivocal language which seemed to leave this, as was the case with all other fact findings, to the considered judgment of the jury.⁷

Even more unfortunate, by reference to one specific event described in the statement and Hardy's oral testimony at variance concerning it, the Court inadvertently used language indicating strongly that Hardy affirmed the truthfulness of his written statement and "that this version coming from his written statement was true and correct." The Government concedes that Hardy did no such thing. Treated by the jury as a declaration of law, it was simply incorrect. Treated as an expression of the Judge's opinion, which in a Federal Court he may rightfully express, it failed to carry the caveat that the Court's opinions were not binding and the jury was free to determine it on their own.

With this supplemental charge and a paraphrase of the frequent charge concerning the jury's duty to reach a decision if possible, Allen v. United States, 1896, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528, the jury was sent out to recommence its deliberations and shortly returned a verdict of guilty against defendants on both counts.

This record demonstrates that we do...