Turner v. United States

• Decision Date: 19 March 1971
• Docket Number: No. 25526.,25526.
• Citation: 441 F.2d 736
• Parties: Alton TURNER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

441 F.2d 736 (1971)

Alton TURNER, Appellant, v. UNITED STATES of America, Appellee.

No. 25526.

United States Court of Appeals, Fifth Circuit.

March 19, 1971.

Alan R. Schwartz, Miami, Fla., for appellant.

Morton Orbach, Asst. U. S. Atty., Miami, Fla., for appellee.

Before JOHN R. BROWN, Chief Judge, THORNBERRY, Circuit Judge, and TAYLOR, District Judge.

ON PETITION FOR REHEARING

PER CURIAM:

Government's Motion for Rehearing is granted. On original submission Appellant's conviction was reversed on his Fourth Point, charging improper and prejudicial argument by the Assistant United States Attorney in his closing remarks to the jury, Circuit Judge Thornberry dissenting, Turner v. United States, 5 Cir., 1969, 415 F.2d 1234. The opinion of Taylor, District Judge, is withdrawn and that of Judge Thornberry substituted as the opinion of the panel on Appellant's Fourth Specification of Error. This holding necessitates a ruling on Appellant's other points of error.

By his First Specification of Error Appellant asserts that the trial judge should have directed a verdict for the defendant on the ground that the evidence of a "controlled sale", based upon the testimony uncorroborated on key points of an addict-felon-informer was insufficient as a matter of law to establish defendant's guilt beyond a reasonable doubt. In passing upon sufficiency of evidence questions the Court must, of course, apply the familiar rule that the evidence must be considered in a light most favorable to the government. And if there is substantial evidence to support the verdict the conviction must be affirmed. Glasser v. United States (1944), 315 U.S. 60, 80, 62 S. Ct. 457, 86 L.Ed. 680, 704; Gilliland v. United States (5th Cir. 1967), 385 F.2d 912; Gorman v. United States (5th Cir. 1963), 323 F.2d 51, 52; United States v. Piercefield (5th Cir. 1971), 437 F.2d 1188. The basic facts are stated in the opinion filed on original submission. Appellant's main complaint is that (a) the agents did not and could not keep the informer in sight at all times so as to exclude the possibility or likelihood of Tony having secured the narcotics from someone else or merely be picking them up in the back yard of the house, (b) they did not make an immediate arrest to find any money in Alton Turner's possession and did not even see Alton Turner on the day in question, and (c) the carefulness of the search of Tony Turner before he went into the house was questionable. Appellant relies upon Panci v. United States, 256 F.2d 308, 312 (5th Cir.). It is true that the government agents were unable to view the transaction between the government informer and Appellant. Agent Navarro did testify that through the Kell device he heard the informer walk in one continuous motion toward the back of the house, that he heard the doorbell ring, heard part of the conversation regarding the sale and the words "sell them" used by the other person, and heard Tony (the informer) ask to use the bathroom and in fact heard the bathroom toilet being flushed. Agent Navarro did describe the other voice as a male voice which appeared to sound like a feminine voice, not deep, high pitched, and without accent, a clear voice; thus, when the defendant took the stand the jury had an opportunity to evaluate Navarro's description of the voice he heard. The facts in Panci are not analogous to this case. In Panci no one testified that a brown paper bag had narcotics in it when it was allegedly transferred by the defendant. Here, the informant positively identified the six capsules which were transferred to him by the defendant. The fact that defendant was not arrested until months after the occurrence of the event charged here appears to be of no import because at that time he did not have in his possession any of the official funds supplied the informant for the purpose of making the purchases. United States v. Mims, 340 F.2d 851 (7th Cir. 1965). The testimony of the informer is sufficiently and adequately corroborated by the testimony of the agents. Conflicts in the evidence, as well as credibility of the witnesses, are for resolution by the trier of the facts. Glasser v. United States, supra, and viewing the evidence and the reasonable inferences which may be drawn therefrom in the light most favorable to the government, it appears that the evidence is sufficient and Appellant's First Specification of Error is accordingly overruled.

Appellant's Second Specification of Error is that the trial judge committed prejudicial error in refusing to permit the defendant to take the stand in surrebuttal to counter the identification testimony of an unlisted government witness presented in rebuttal. Appellant presented a vigorous alibi defense maintaining that at the time of the offense, June 10, 1966, he was in Atlantic City, New Jersey, and had been out of the Miami area since June 5, 1966. The government called two witnesses in rebuttal, to-wit, H. Williams, Appellant's landlord, who testified that he had receipts for Appellant's rent dated June 11, 1966 and one dated June 18, 1966, and Police Officer L. C. Smith, who testified that he had seen Defendant Alton Turner on June 14, 1966. After the government closed, defendant's attorney stated that he would like to put the defendant back on the stand. The Court...