Thomas v. United States, 18445.

• Decision Date: 04 April 1961
• Docket Number: No. 18445.,18445.
• Citation: 287 F.2d 527
• Parties: Joseph Lloyd THOMAS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

287 F.2d 527 (1961)

Joseph Lloyd THOMAS, Appellant, v. UNITED STATES of America, Appellee.

No. 18445.

United States Court of Appeals Fifth Circuit.

March 2, 1961.

Rehearing Denied April 4, 1961.

Edgar Corey, New Orleans, La. (on appeal only), for appellant.

T. Fitzhugh Wilson, U. S. Atty., Shreveport, La., for appellee.

Before TUTTLE, Chief Judge, HUTCHESON, Circuit Judge, and CLAYTON, District Judge.

TUTTLE, Chief Judge.

This appeal from a verdict of guilty and maximum sentence under the Bank Robbery Statute¹ presents a record which is bare of any attempt by counsel for the appellant to call to the attention of the trial court any of the alleged errors which are here relied on for reversal.

Appellant was convicted of participating with two others in the robbery of a bank in Shreveport, Louisiana, by a threat of violence by the use of a dangerous weapon. On his trial he was identified by five eyewitnesses to the robbery and his participating in the offense was further testified to by an accomplice who had previously pleaded guilty The evidence supporting the jury's verdict was overwhelming. The only defense was alibi, testified to by the accused himself and by two casual acquaintances whose testimony was itself somewhat shaken on cross examination. The strength of the case made against the accused by the government is commented on in light of the fact that under familiar rules Courts of Appeals do not review actions of omission or commission by a trial court unless the accused "makes known to the court the action while he desires the court to take or his objection to the action of the court and the grounds therefor." Rule 51, F.R.Cr.P., 18 U.S. C.A. In order to overcome the provisions of Rule 51 appellant must bring himself within the "plain error" rule, rule 52, which provides, "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the Court."

The principal ground of appellant's argument here is the action of the trial court which followed a surprise change of position by one Angelly who had previously pleaded guilty as an accomplice and who had given a sworn detailed confession prior to the trial. As the trial progressed the United States Attorney caused Angelly to be sworn as a witness for the prosecution.

"By Mr. Wilson: Q. Would you state your name for the Court and jury? A. Cecle Ray Angelly.

"Q. Mr. Angelly, it has been the testimony of five eye witnesses here that two robbers entered the Youree Drive Branch of the Commercial National Bank in Shreveport on February 13, 1958, and robbed that bank of better than $34,000. Did you participate in that robbery? A. No, sir.

"Q. What? A. No, sir.

"Mr. Wilson: May it please the Court, I would like to plead surprise at this time and impeach the witness.

"May I have the authority to cross examine him?

"Mr. Hayes: Your Honor, I don\'t see how the District Attorney can plead surprise when he has had this man locked up in the jail.

"The Court: State the circumstances of your surprise, Mr. Wilson?"

The prosecuting attorney very clearly stated facts establishing that he had been completely taken by surprise by Angelly's denial that he participated in the robbery. Thereupon, the trial court warned Angelly that he was under oath and that he would be subject to prosecution for perjury if he swore falsely, and he then permitted the United States attorney to question this witness on each statement of his prior written confession. He read each sentence and asked Angelly whether he made the statement and after Angelly answered "No", he then asked him, "Is it true?". To all the material questions Angelly stated that he did not make the statement and that the statement was not true. During the course of the questions, however, he did say he knew the defendant and he also interjected, "I will testify again, neither Joe Thomas or I robbed the bank. That is all I will say."

Angelly did admit that he had initialed each page of the statement and had signed it, but he persisted in his denial of the truth of the statement which purportedly was executed under oath.

As we have stated, defense counsel made no objection to the questioning of Angelly, except by making the remark, "Your Honor, I don't see how the District Attorney can plead surprise when he has had this man locked up in the jail."

Inasmuch as Angelly had made no statement from the witness stand hurtful to the Government's case at the time the United States Attorney was taken by surprise, the proper procedure, if objection had been made, would have been for the witness to have been withdrawn before he was permitted to give any further testimony. This court has held in Culwell v. United States, 5 Cir., 194 F.2d 808, 811, that "Where there is a real surprise it is not proper to permit the impeachment testimony to go beyond the only purpose for which it is admissible, i. e., the removal of the damage the surprise has caused." See also Young v. United States, 5 Cir., 97 F.2d 200, 117 A.L.R. 316.

If to the first question Angelly had answered that the accused had not participated in or been present at the scene of the crime, some cross-examination would have been permissible to attack his credibility on the strength of Angelly's prior sworn statement to the contrary. This would be necessary in order to remove the damage the surprise caused.

Here, however, no damaging testimony was given until after much of the incriminating statement had been read to the witness. The Government was thus permitted to prove by the witness that he had signed a complete confession implicating the appellant but that he now repudiated it.

So much of our system of administration of justice depends on the right to counsel, and courts so frequently hold an accused to be bound by decisions and judgments made by counsel in the conduct of criminal trials, that we should not lightly determine that counsel in a case such as this quietly sat by while clearly inadmissible evidence was being introduced against their client without objection unless they had a good reason for doing so.

In light of the clear and convincing proof already introduced by eyewitnesses to the robbery which overwhelmingly identified Thomas as the guilty person counsel may well have considered that the only manner in which they could create reasonable doubt in the minds of the jury was by permitting the government to ask question after question of Angelly, touching on his purported complicity in the crime and having him deny categorically on each occasion that ...