U.S. v. Brierly

• Decision Date: 09 December 1974
• Docket Number: Nos. 73-1804 and 73-1805,s. 73-1804 and 73-1805
• Citation: 501 F.2d 1024
• Parties: UNITED STATES of America, Appellee, v. Burton Gene BRIERLY, Appellant. UNITED STATES of America, Appellee, v. William Perry BURGESS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1024

501 F.2d 1024

UNITED STATES of America, Appellee, v. Burton Gene BRIERLY, Appellant.

UNITED STATES of America, Appellee, v. William Perry BURGESS, Appellant.

Nos. 73-1804 and 73-1805.

United States Court of Appeals, Eighth Circuit.

Submitted April 15, 1974.

Decided Aug. 16, 1974, Certiorari Denied Dec. 9, 1974, See

95 S.Ct. 631.

Alfred A. Beardmore, Charles City, Iowa, for appellant Brierly.

Michael H. Irvine, Cedar Rapids, Iowa, for appellant Burgess.

Gary E. Wenell, Asst. U.S. Atty., Sioux City, Iowa, Evan L. Hultman, U.S. Atty., was with him on brief, for appellee.

Before HEANEY and STEPHENSON, Circuit Judges, and SMITH, Senior District Judge. ^*

HEANEY, Circuit Judge.

Burton Brierly and William Burgess appeal from their convictions on three counts of an indictment. ¹ The critical issue is whether either or both are entitled to reversal on one or more of the counts because an accomplice was permitted to testify with respect to their involvement in the robbery and weas permitted to claim the protection of the Fifth Amendment when cross-examined. We affirm.

The trial began with Brierly, Burgess and a third codefendant, Joseph O'Rourke, ² before the court. Prior to the third day of testimony, O'Rourke changed his plea to guilty and testified on behalf of the government. His testimony on direct examination can be boiled down to: Brierly, Burgess and I planned the robbery, and Burgess and I carried it out. Under cross-examination, he asserted his privilege against self-incrimination in several areas. Brierly and Burgess did not seek to compel O'Rourke to answer but moved to strike his entire testimony, and the trial court overruled the motion. The defendants allege this was error and that their convictions must be reversed.

A brief summarization of the facts will suffice to place the objection in context. The First State Bank in Nora Springs, Iowa, was robbed at about 11:30 a.m. on January 23, 1973, by a man wearing a ski mask and overalls with patches and carrying a 16-gauge shotgun and duffle bag. Witnesses testified that early that same morning, Burgess and O'Rourke had purchased a ski mask, duffle bag and 16-gauge shotgun shells in Mason City, Iowa. ³ Witnesses placed Burgess and O'Rourke in Nora Springs on the morning of the crime. The getaway car used in the robbery was owned by Burgess.

O'Rourke was arrested the afternoon of the robbery in Nora Springs in the getaway car. Money stolen in the robbery was found on him. Burgess was arrested at a cabin outside of Nora Springs where money stolen in the robbery, the overalls, duffle bag, 16-gauge shotgun shells, ski mask, Browning 16-gauge shotgun and a shotgun case were found. The shotgun and shotgun case were identified as having been recently stolen from a residence in Nora Springs.

O'Rourke testified: that he, Burgess and Brierly had met at Brierly's home and had discussed robbing the bank at Nora Springs, Iowa, and that two days after the meeting, they went for a drive looking for hideouts; that the three men met for a second time at a hotel in Mason City where they agreed on the time of the robbery; that Brierly was to pick him up after the robbery, and that he was waiting for that event to occur when he was arrested; that arrangements had been made for him to purchase an automobile that Brierly had been driving and holding for sale for another; that he and Brierly would drive to Mason City in the car after the robbery; and that the three men were to meet at Albert Lea, Minnesota, to divide the stolen money.

The defendants contend that O'Rourke's assertion of privilege unduly restricted cross-examination in three areas: first, with regard to a sheriff's badge which was found on O'Rourke at the time of his arrest and which belonged to Brierly; second, with regard to the shotgun used in the robbery; and, third, with regard to the reason for O'Rourke being parked near the Nora Springs school at the time of his arrest.

We recognize that the testimony of a witness on direct examination may be used against a defendant even though a witness asserts the privilege against self-incrimination upon cross-examination where the testimony sought to be elicited goes to collateral matters or the credibility of the witness. If, however, the witness-- by invoking the privilege-- precludes inquiry into the details of his direct testimony so that there is a substantial danger of prejudice, the direct testimony should be stricken in whole or in part. Necessarily, the trial court has discretion in this area, and only in a case of abuse of such discretion resulting in obvious prejudice should an appellate court intervene. Coil v. United States, 343 F.2d 573 (8th Cir.), cert. denied, 382 U.S. 821, 86 S.Ct. 48, 15 L.Ed.2d 67 (1965); Smith v. United States, 331 F.2d 265 (8th Cir.), cert. denied, 379 U.S. 824, 85 S.Ct. 49, 13 L.Ed.2d 34 (1964). We have reviewed the record and find no abuse of discretion.

The questions which O'Rourke refused to answer went to collateral matters or were intended to elicit answers which would tend to impeach him. Brierly admitted that he knew O'Rourke and had associated with him in the two weeks before the robbery. Thus, the question of whether O'Rourke stole or was given the sheriff's badge was clearly collateral. The questions with respect to the shotgun were with reference to a gun which was not used in the robbery. They were designed to show that O'Rourke had lied to the FBI with respect to the gun used in the robbery, and were obviously intended to impeach O'Rourke. And the questions with respect to the stalled car were asked for the same purpose.

Each defendant has made other assignments of error.

Brierly contends: ⁴

(1) That a continuance should have been granted until his counsel could obtain a transcript of a pretrial hearing on O'Rourke's motion to suppress incriminating statements made by him. That hearing was held approximately one week prior to commencement of the trial. O'Rourke testified in an extremely vague manner. He remembered nothing about the robbery and stated he did not know when he had eaten last, where he had slept the night before or what a lawyer, an oath or the Constitution was. His testimony was sufficiently disturbing so that the government, at the urging of the trial court, moved for a psychiatric examination. The examination was made and O'Rourke was determined to have a low intelligence quotient but to be competent to stand trial.

We find no abuse of discretion in refusing to grant a continuance. The granting of such a motion is discretionary with the trial court. See, United States v. Leach, 429 F.2d 956 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971), and cases cited therein. Brierly's counsel was given notice of the hearing and failed to attend or arrange for substitute counsel to attend. While the record had not been transcribed by the reporter by the time the motion for continuance was made, the trial court offered to have the reporter read the transcript. This offer was refused by counsel. We think the court's offer was sufficient. We further note that Burgess's counsel was present at the hearing. Moreover, counsel for the defendants hammered home the point that O'Rourke's memory recovered remarkably once the plea was entered.

( 2) That the government failed in its duty to advise counsel of information favorable to the defense. The short answer to this contention is that there was no favorable information to be given. To require the government to tell counsel that O'Rourke had testified at the hearing and did not recall being involved in the robbery, borders on the frivolous. Cf., United States v. Hernandez, 441 F.2d 157 (5th Cir.), cert. denied, 404 U.S. 847, 92 S.Ct. 150, 30 L.Ed.2d 84 (1971); United States v. Soblen, 301 F.2d 236 (2nd Cir.), cert. denied, 370 U.S. 944, 82 S.Ct. 1585, 8 L.Ed.2d 810 (1962).

( 3) That the jury was denied an opportunity...