Tanner v. United States

• Decision Date: 24 February 1969
• Docket Number: No. 19036.,19036.
• Parties: Richard Allen TANNER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

401 F.2d 281 (1968)

Richard Allen TANNER, Appellant, v. UNITED STATES of America, Appellee.

No. 19036.

United States Court of Appeals Eighth Circuit.

October 9, 1968.

Rehearing Denied November 5, 1968.

Certiorari Denied February 24, 1969.

COPYRIGHT MATERIAL OMITTED

Kenneth K. Simon, Kansas City, Mo., for appellant; Richard Allen Tanner, pro se.

Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee; Calvin K. Hamilton, U. S. Atty., and William A. Kitchen, Frederick O. Griffin, Jr., Asst. U. S. Attys., Kansas City, Mo., on brief.

Before VAN OOSTERHOUT, Chief Judge, HEANEY, Circuit Judge, and REGISTER, Chief District Judge.

Certiorari Denied February 24, 1969. See 89 S.Ct. 922.

REGISTER, Chief District Judge.

Appellant Richard Allen Tanner (hereinafter referred to as Tanner or Appellant) was tried by a jury on a two-count Informantion. In Count I it was charged that "on or about August 28, 1966, in the Western Division of the Western District of Missouri, (Tanner) transported and caused to be transported in interstate commerce from Grove, Oklahoma, to Kansas City, Missouri, a stolen motor vehicle, to wit: a 1965 Chrysler, and he then knew said motor vehicle to have been stolen, in violation of Section 2312, Title 18, United States Code." In Count II Tanner was charged with a violation of Section 2313, Title 18, United States Code — the receipt by him of said stolen motor vehicle, which was moving as interstate commerce, he then knowing said motor vehicle to have been stolen. At the close of all of the evidence, Count II was dismissed, and the case submitted to the jury under appropriate instructions, solely on Count I. This appeal is from his conviction by the Jury on Count I and the resulting judgment entered and sentence imposed.

During all proceedings in this case, Tanner has been represented by court-appointed counsel. Trial counsel was a member of the staff of the Legal Aid & Defender Society of Greater Kansas City. In the preparation of brief on this appeal, and for oral argument before this Court, different counsel represented Tanner, under appointment by this Court pursuant to application of Tanner. For reasons which will become apparent, we will first consider the contentions of Tanner which are before us as a result of brief and argument of such latter counsel.

Tanner's first contention on this appeal is that he "was denied substantive due process as a result of ineffective representation by his Court-appointed defense counsel." As one specific basis of the charge of "ineffective representation" Tanner contends that his counsel "failed to preserve error during course of trial by timely and proper objections." The objections which Tanner contends should have been made, allegedly refer to "hearsay," "leading questions" and "opinion testimony." In Appellant's brief after reference to and discussion of instances of such alleged improper failure on the part of trial counsel to make objections, we find the following significant statement: "Appellant readily concedes however that this might well be construed as a matter of trial tactics and strategy constituting only a procedural matter and of no genuine substance." With this conclusion we agree.

We have carefully examined the transcript of the trial proceedings. Counsel's failure to make the objections referred to was obviously the result of his considered exercise of judgment involving trial tactics, and we are satisfied that no violation of any substantial right of Tanner, or prejudice to him, occurred by reason thereof.

As the only other specific basis of the charge of "ineffective representation" Tanner states that his lawyer "failed to preserve possible assignments of error by failing to file any motion for new trial." Tanner argues that, because of such failure, he was denied "his vital right to appeal," and, proceeding with this argument, contends that "failure * * * to file a Motion for New Trial and preserve thereby all possibility of error for appeal constitutes such ineffective representation as to render Appellant the victim of a farce and a sham within the purview of the Malfetti and Hendrickson cases, supra, to the effect that his substantive constitutional rights were denied him."¹ While conceding that a convicted felon's retrospective dissatisfaction with counsel is not an unusual occurrence, and in itself is no indication of denial of substantive due process, Tanner contends that this failure on the part of his trial counsel so violated the standard required for effective representation as to "shock the conscience of the Court." Yet the only alleged "point of error" which Tanner contends might properly have been raised had such motion been made, was insufficiency of the evidence as to his knowledge, at the time he transported said vehicle in interstate commerce, that the vehicle had been stolen.

At the close of all of the evidence, defense counsel made a motion for a directed verdict,² which was denied. Had defense counsel not taken this action, the question of the sufficiency of the evidence would not have been properly preserved upon appeal. United States v. Jonikas, 187 F.2d 240 (7 Cir. 1951), and United States v. Earnhardt, 153 F.2d 472 (7 Cir. 1946), cert den. 328 U.S. 858, 66 S.Ct. 1350, 90 L.Ed. 1629.

Although the right to appeal from a conviction in a criminal case is within the protection of the Constitution (Brown v. Looney, 249 F.2d 61, 62 (10 Cir. 1957)), "Due process of law does not require that the trial court see to it that a defendant's attorney makes a motion for a new trial and perfects an appeal. An appeal is not necessary to due process of law." DeMaurez v. Swope, 104 F.2d 758, 759 (9 Cir. 1939). In the instant case, however, it is clear that defense counsel's omission to file a motion for new trial neither prevented the appeal nor eliminated therefrom the "point of error" Tanner states could properly have been raised therein. The merits of such alleged "point of error" will be later considered and discussed in this opinion.

During oral argument counsel for Tanner raised the question of the propriety of trial defense counsel's making the motion for directed verdict in the presence of the jury, and cited United States v. Coke, 339 F.2d 183 (2 Cir. 1964) as holding that this is "contrary to the better practice." The motion made in this manner in Coke was preceded by highly unusual circumstances which occurred during trial and were such as to cause the appellate court to believe might reasonably have caused the jury to imply from the trial judge's abrupt denial of the motion "that the defense was incompetent and a sham and that the jury should convict." No similar circumstances had here occurred and no basis for such an inference existed at the time the motion was made in this case. While we agree with the Court in Coke that the better practice is to make such motion out of the presence and hearing of the jury, we consider it very questionable whether, upon the record of this case, making this motion in open court was error, but if it was, we are convinced it was not prejudicial.

Appellant's remaining contention (as briefed and argued by counsel) is that the trial court committed error in denying his motion for directed verdict (judgment of acquittal) because of the insufficiency of the evidence to support a jury's finding that he knew the car was stolen. The applicable general rules here involved are well established. Maguire v. United States, 358 F.2d 442, at page 444 states:

"In considering the motion for acquittal, the trial court must view the evidence in the light most favorable to the government, together with inferences which may fairly be drawn therefrom, and then determine whether there is substantial evidence from which a jury might properly find the accused guilty beyond a reasonable doubt. This standard is applicable to each of the several elements of the offense. Cartwright v. United States, 10 Cir., 335 F.2d 919. To convict under 18 U.S.C. § 2312, the government must prove (1) that the vehicle was stolen, (2) that it was transported in interstate commerce, and (3) that such transportation was with knowledge that the vehicle was stolen. Allison v. United States, 10 Cir., 348 F.2d 152." Maguire v. United States, 358 F.2d 442, (10 Cir. 1966), cert. den. Giles v. U. S., 385 U.S. 870, 87 S.Ct. 138, 17 L.Ed.2d 97.

No question is raised as to the sufficiency of the evidence concerning the first two elements of the offense. Conclusive evidence that the motor vehicle here involved was stolen during the night of August 28, 1966, in Grove, Oklahoma, was in effect stipulated into the record. Sufficient evidence that the defendant transported this vehicle in interstate commerce (from Oklahoma to Missouri) is in the record. Brief reference will be made to some of the evidence relevant to the remaining element.

In August, 1966, Tanner was living in an apartment in Kansas City, Missouri, with a roommate and friend, one Manis. Tanner owned and was using a 1953 Plymouth automobile bearing license plate WY 75271, a Kansas (Wyandotte County) license plate which had been issued to Tanner. Manis owned and operated a 1959 Chevrolet automobile. In the latter part of that month, Tanner told Manis they were going to drive to Bartlesville, Oklahoma, to visit Tanner's parents. Before leaving, Tanner drove his Plymouth to a salvage yard in Kansas (after having his certificate of title thereto notarized for purpose of sale) and sold it to the salvage dealer. Manis drove his Chevrolet to this yard, and while he (Manis) was there, Tanner removed his Kansas license plates from the Plymouth and put them in the back seat of the Chevrolet. Manis then drove his vehicle, accompanied by Tanner, to the home of the latter's parents in Oklahoma. After visiting a few days with his parents and some other relatives, Manis and Tanner drove to the home of Tanner's married cousin (whose first name was Melba) which...