U.S. v. Curry, s. 74-1097

• Citation: 512 F.2d 1299
• Decision Date: 03 April 1975
• Docket Number: 74-1098 and 74-1873,Nos. 74-1097,s. 74-1097
• Parties: UNITED STATES of America, Appellee, v. Drayton CURRY, Appellant (two cases). UNITED STATES of America, Appellee, v. Howard Langston MANLEY, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1299

512 F.2d 1299

UNITED STATES of America, Appellee, v. Drayton CURRY, Appellant (two cases).

UNITED STATES of America, Appellee, v. Howard Langston MANLEY, Appellant.

Nos. 74-1097, 74-1098 and 74-1873.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 6, 1974.

Decided April 3, 1975.

Neill H. Fleishman, Fayetteville, N. C., for appellant in Nos. 74-1097 and 74-1873.

Milton E. Moore, Williamston, N. C. (Regina A. Moore, Williamston, N. C., on brief), for appellant in No. 74-1098.

Joseph W. Dean, Asst. U. S. Atty. (Thomas P. McNamara, U. S. Atty., and Christine A. Witcover, Asst. U. S. Atty., on brief), for appellee in Nos. 74-1097, 74-1098, and 74-1873.

Before BOREMAN, Senior Circuit Judge, WIDENER, Circuit Judge, and THOMSEN, Senior District Judge.

BOREMAN, Senior Circuit Judge:

These appeals stem from the convictions of Drayton Curry (No. 74-1097) and Howard Langston Manley (No. 74-1098) for numerous violations of federal drug laws. Since the appellants were tried together and their respective challenges to the judgments of conviction raise several identical legal issues, the appeals of those cases were consolidated. We have joined with those appeals consideration of the appeal by Curry from the district court's denial of his motion for a new trial (in No. 74-1873).

NOS. 74-1097 AND 74-1098

The Government's evidence, if believed, shows that in October 1972 appellant Curry, at the request of one Ellis Sutton who was then in prison, undertook to collect a debt owed by Ben and Joan Brooks to Sutton arising from a sale of heroin. At the time Curry offered to sell additional heroin to the Brookses. On October 29, 1972, the Brookses and others met with the appellants Curry and Manley and observed them distributing heroin. Four eyewitnesses testified to the transactions. One week later, on November 2, 1972, Curry and Manley offered to sell additional heroin to the Brookses-one-eighth of a kilo for $3600. Several hours later the Brookses, who were joined by one Tammy Myles, called Curry to set up the purchase. Curry agreed to sell the heroin. Manley then met the Brookses and Miss Myles at the place arranged by Curry and sold them the heroin. The Brookses and Miss Myles testified to the transaction. Two and one-half weeks later Myles made an $1800 purchase of heroin from Manley; Curry was not present at this transaction.

Appellant Curry assigns as error the district court's denial of his motion for a continuance. Such a motion is addressed to the sound discretion of the court and denial thereof is not error unless it constitutes an abuse of discretion. United States v. Inman, 483 F.2d 738 (4 Cir. 1973); United States v. Pigford, 461 F.2d 648 (4 Cir. 1972). Curry's counsel argues that he did not have adequate time in which to prepare a defense. The record demonstrates that Curry made no effort to retain trial counsel between August 20, 1973, at which time he retained counsel for purposes of representation at arraignment only, and November 27, 1973, just seven days prior to trial when he employed his present counsel. Had Curry acted with reasonable dispatch in employing counsel for trial, no continuance need have been requested. Where the defendant has unreasonably delayed retention of counsel to represent him and such delay is the sole result of defendant's dilatory tactics it is not an abuse of discretion to deny a request for a continuance based upon an allegation that additional time would be "helpful" in preparing a defense. In any event, defense counsel did have seven days for preparation. We find no merit in this assignment of error.

Curry also charges that the court erred in denying his motion to sever his trial for that of appellant Manley. Specifically, Curry contends there was a misjoinder of defendants in violation of Rule 8(b), Federal Rules of Criminal Procedure. We reject this contention as without merit. The indictment charged and the evidence, if believed, proved that Curry and Manley jointly participated in the series of transactions charged, and they could, therefore, be joined pursuant to Rule 8(b). Although the court could have ordered separate trials pursuant to Rule 14, Fed.R.Crim.P., there was no persuasive reason urged or presented for doing so. Much of the evidence with respect to Manley which Curry argues was prejudicial to him would have been admissible against Curry even if he were tried separately since a conspiracy was alleged. ¹

Both Curry and Manley assign as error the prosecutor's disclosure of Jencks Act material in the presence of the jury. We are in agreement with the views of the Second, ² Fifth, ³ Seventh, ⁴, and the District of Columbia ⁵ Circuits that, upon the request of counsel, Jencks Act disclosures should ordinarily be made outside the presence of the jury. We might be somewhat troubled that the prosecutor's actions in this respect, were unduly emphasized by the trial court when it read the Jencks Act to the jury. However, careful review of the record reveals that no objection was made to the prosecutor's actions until late in the trial and after this procedure had been followed repeatedly without objection. The trial court read the Act to the jury on that occasion so they might better understand the nature of the dispute between counsel and to preclude any inference by the jurors that evidence was being withheld from them. Additionally, we note that defense counsel made frequent reference to the Jencks Act material while cross-examining witnesses; this procedure made the existence of the material known to the jury and precluded any objectionable inference of the type which the court found sufficient to require reversal in Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185 (1966). ⁶ See United States v. Gardin, 382 F.2d 601, 605-606 (2 Cir. 1967). ⁷ In light of all the circumstances we conclude that any error in this respect was harmless.

Both Curry and Manley object to the court's failure to instruct the jury regarding the weight to be accorded the testimony of a witness who had been granted immunity. No timely objection was made to the judge's charge and reversal is warranted only if the error is "plain error." See United States v. King, 420 F.2d 946, 947 (4 Cir. 1970). Since all witnesses who were granted immunity were accomplices and since the court instructed the jury that the testimony of an accomplice is "to be received with caution and weighed with great care," the jury were thus instructed to give their testimony special scrutiny. The jurors were informed of those witnesses who had been granted immunity and were given a general instruction on the credibility of witnesses which told them to consider the "interest" of each witness in the outcome of the case and whether each witness has "any motive or reason for being truthful or untruthful in his testimony." In view of these facts, we conclude that the court's failure to give an instruction specifically relating to the weight to be accorded the testimony of a witness who had been granted immunity was not "plain error" which would command reversal.

The court told the jury on two occasions that Willie Curry and Willie Swinson, who were originally co-defendants in this case and whose names appeared in the indictment, had entered pleas of nolo contendere to the charge in the first count, and would not be tried with the others. Appellants concede "an aura of mystery would be present if no explanation at all were given to the absence of co-defendants" but suggest that the jury should not be told that the co-defendants had entered pleas of nolo contendere. While it might be preferable to tell the jury only that the case against the co-defendants had been disposed of previously and that they had been eliminated from the present trial, it was not error, under the circumstances, to reveal to the jury the pleas of the original co-defendants. Wood v. United States, 279 F.2d 359 (8 Cir. 1960). Any prejudice which might have arisen from this information was cured when the court told the jury not to consider those pleas "in any manner as relates to these defendants," and specifically instructed that "it is not to be taken as (evidence of) any guilt of the remaining defendants on trial."

Both Manley and Curry objected to the following question posed by the prosecutor to Sheriff Broughton, a government rebuttal witness, and moved to strike the response:

Q. Do you know what his (Manley's) character and reputation is for dealing in drugs?

A. About a year ago I had information he was dealing in drugs.

The court overruled the objections and denied the motions to strike. For the reasons to be stated we agree that the question was improper and that the court erred in denying Manley's motion to strike the answer.

The question is faulty in that it seeks to inquire about the sheriff's "knowledge" of the "character" of the defendant. "Since the whole inquiry ... is calculated to ascertain the general talk of people about defendant, rather than the witness' own knowledge of him, the form of inquiry, 'Have you heard?' has general approval, and 'Do you know?' is not allowed." Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 221, 93 L.Ed. 168 (1948) (footnote omitted). Additionally, the question is directed to the "character" as well as the "reputation" of the defendant; the permissible inquiry is limited to the reputation of the accused, what those in the community perceive him to be, and not his character, what he actually is. Torcia, Wharton's Criminal Evidence § 230 (13th ed. 1972).

The question to the sheriff and the response thereto were clearly improper. There is no indication that the sheriff's information was the consensus of opinion of the defendant's reputation in the relevant community. If the source of that information was a police report or some other nonpublic source it is not admissible to show the defendant's reputation. ⁸ A witness called by the prosecution to...