Sumrall v. United States

• Decision Date: 09 May 1966
• Docket Number: No. 8374-8376.,8374-8376.
• Parties: Donald Wayne SUMRALL, Joe Jerrell Crocker and Raymond Claude Nabors, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

360 F.2d 311 (1966)

Donald Wayne SUMRALL, Joe Jerrell Crocker and Raymond Claude Nabors, Appellants, v. UNITED STATES of America, Appellee.

Nos. 8374-8376.

United States Court of Appeals Tenth Circuit.

May 9, 1966.

Mike Barclay and Norman Kinne, Dallas, Tex., for appellants.

Bruce Green, U. S. Atty., for appellee.

Before MURRAH, Chief Judge, SETH, Circuit Judge, and CHRISTENSEN, District Judge.

MURRAH, Chief Judge.

Appellants jointly appeal from judgments and sentences after a jury trial on an indictment jointly charging them with armed robbery of a federally insured bank in violation of 18 U.S.C. § 2113(d).

The evidence of guilt is overwhelming. One of the confessed participants and co-defendants testified to the plans and execution of the robbery and implicated each of the appellants as an active participant. There was other direct and circumstantial proof of guilt. The only point on appeal is whether the trial court erroneously refused to strike as "unresponsive, prejudicial and inflammatory" a reference by one of the police officer-witnesses to the "records" of appellants.

The question is presented in this context: On direct examination one of the arresting officers testified that he and his partner stopped the three defendants and a woman in a car at approximately 3:30 in the morning in a residential section of Dallas, Texas; that the car was stopped because it was exceeding the speed limit and the lights on the rear were defective. When the car was stopped, the driver alighted and in response to questions identified himself as Bob Nabors; he admitted having no driver's license or any other identification. On search of Nabors' person the officers found "a large sum of bills" and a driver's license and identification card "belonging to another man named Briggs". After some further searching and questioning, the defendants were taken to the Dallas Police Headquarters and to the Auto Theft Bureau where they were further searched and placed in custody. The police officer was cross-examined concerning the cause of apprehension and particularly with respect to the speed of the automobile and the defective lights over the license plate. The cross-examination developed the fact that neither appellant Crocker nor appellant Sumrall had committed any breach of the peace in the presence of the officers. On direct examination the witness was asked, "What was your purpose in removing this examination from the scene of the arrest to the police station?" The question was objected to as "pure conjecture". The objection was overruled and the witness answered, "The purpose was after questioning them that we advised them that we were going to check their records, and being that they admitted that they had one." The response was objected to "on the grounds that it is prejudicial and inflammatory. It's unresponsive to the question propounded by the U. S. Attorney." The court ruled, "No. He's telling him why they took them to the police station. Overruled." Counsel for the defendants then moved to strike the answer "as being unresponsive, prejudicial and inflammatory." The motion was overruled and nothing further was said concerning the matter during the trial of the case. None of the defendants testified and neither their reputations nor their veracity was put in issue.

On appeal the government freely concedes that the reference to the defendants' "records" was inadmissible and erroneous. See Michelson v. United States, 335 U.S. 469, 472, 69 S.Ct. 213, 218, 93 L.Ed. 168.¹ The error is simply excused as harmless under Rule 52 F.R.Crim.P. It is suggested that the response was spontaneous, unforeseeable, and that instructions to the jury not to consider it would have overemphasized that which was purely incidental in the context of overwhelming evidence of guilt. It may be that the answer was unresponsive and unforeseeable. There is nothing to indicate that it was designed or planted. It may also well be that any comment or reference to the "records" would have served to overemphasize the fact in the minds of lay jurors. But, the defense, not the prosecution or the court, must be the judge of the probable impact of the reference to appellants' records. The motion was concededly well taken, and the court undoubtedly should have stricken the answer and instructed the jury not to consider it. The effect of the refusal to strike the response and admonish the jury was to inferentially tell the jury that they may consider the records in determining guilt or innocence.

It has been recently said in the Second Circuit that "Improper introduction of evidence of a defendant's past criminal record is ground for a new trial." And, "Cautionary instructions will not cure the error." See United States v. Rinaldi, 301 F.2d 576, 578, citing Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250. The Marshall case was concerned with the effect of newspaper articles read by some of the jurors outside the court which stated that the defendant had a "record of two previous felony convictions" and other matter reflecting on his character. Prejudice was conclusively presumed even in the face of the jurors' denial that they were in any way influenced by the news articles. But, the courts have not categorically applied the rule to every erroneous exposure of jurors to the defendant's record or reputation. Michelson v. United States, supra, reaffirmed the common law tradition excluding "any kind of evidence of a defendant's evil character to establish a probability of his guilt", but it did not rule that the erroneous admission of every kind of such evidence under every circumstance required the court to grant a new trial. Instead, it wisely left the whole matter of character and record evidence to the prudent discretion of the trial court, subject, of course, to review for abuse.

Before Michelson and Marshall, the Supreme Court, dealing with the erroneous admission of probative evidence of guilt and particularly whether such error so infected the case as to require reversal, said, "If, when all is said and...