U.S. v. Davidson
| Decision Date | 23 April 1979 |
| Docket Number | No. 78-1214,78-1214 |
| Citation | 597 F.2d 230 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Chester Lee DAVIDSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Larry D. Patton, U. S. Atty., and Charles Lee Waters, Asst. U. S. Atty., Oklahoma City, Okl., for plaintiff-appellee.
Norman D. Haglund and Terrance R. Kelly, of Kelly, Haglund, Garnsey & Kahn, Denver, Colo., for defendant-appellant.
Before LEWIS, McWILLIAMS and LOGAN, Circuit Judges.
Chester Lee Davidson, an inmate at the Federal Correctional Institution, El Reno, Oklahoma, was convicted by a jury of assaulting a fellow inmate with an intent to commit murder in violation of 18 U.S.C. § 113(a). Davidson was also convicted on a second count charging him with conveying a knife from place to place within the institution. 18 U.S.C. § 1792. Davidson was sentenced to a term of ten years on the assault to commit murder charge, and a five-year term on the second count, the two sentences to be served concurrently. No mention was made by the trial judge at that particular time as to whether the sentences thus imposed were to be served concurrently with or consecutively to the bank robbery sentence which Davidson was serving in the El Reno institution at the time of the incident which formed the basis for the present prosecution. However, about one and one-half hours after sentencing, Davidson was returned into open court by the United States Marshal, and with his attorney present, Davidson was advised by the sentencing judge that the two sentences previously imposed were to be served consecutively to the sentence for bank robbery which Davidson was then serving.
Davidson now appeals and raises four grounds for reversal: (1) insufficient evidence to support the assault to commit murder conviction; (2) inadmissible evidence; (3) improper comment by Government counsel in his closing argument; and (4) improper sentencing.
The jury was instructed on both assault to commit murder and the lesser included offense of assault with a deadly weapon. By its verdict the jury rejected the lesser charge and convicted Davidson of the greater one. On appeal it is contended that there is insufficient evidence to show that Davidson had a specific intent to commit murder. We disagree.
The Government's evidence established that a fellow inmate, one John Mathis, and Davidson had known each other in Texas prior to their incarceration in the El Reno institution. There apparently was a long-standing dispute between the two to the end that Mathis sought and obtained segregation in the institution for his self-protection. A prison counsellor at El Reno attempted to mediate the dispute, and on Davidson's assurances that any differences between Davidson and Mathis would not be settled within the prison, Mathis returned to the general prison population. Some time later, according to Mathis, Davidson assaulted him with a sharpened dining room knife and inflicted three stab wounds, two on the back of the neck and one in the chest area. Such wounds proved not to be serious, although Mathis was hospitalized briefly.
Mathis' version of events was substantiated by two fellow inmates who testified, in effect, that Davidson was the assailant. However, Davidson testified in his own defense and declared that Mathis was the aggressor, and that he, Davidson, was in fact the victim. Davidson's version of events was corroborated, in part, by a fellow inmate.
By its verdict, the jury rejected Davidson's testimony and accepted the testimony of the several Government's witnesses. We believe that the Government's evidence did establish a Prima facie case of assault to commit murder. A deadly weapon was used, namely a dining room knife sharpened to a point, with a homemade handle affixed thereto. Stab wounds were inflicted which were potentially, though not in fact, serious. These facts and circumstances, viewed in a light most favorable to the prevailing party in the trial court, are sufficient to support the conviction on the assault to commit murder charge. Intent, of course, is seldom established by direct evidence, and resort must generally be made to circumstantial evidence. United States v. White, 557 F.2d 233, 235-36 (10th Cir. 1977), and United States v. Curtis, 537 F.2d 1091, 1097 (10th Cir.), Cert. denied, 429 U.S. 962, 97 S.Ct. 389, 50 L.Ed.2d 330 (1976).
As indicated, all of the witnesses to the assault, be they Government witnesses or defense witnesses, were inmates in the penal institution at El Reno. In the direct examination of certain of the Government's witnesses, reference was made, over objection, to the so-called "prison code" which disfavors any "snitching" by one inmate on another. This was done, according to counsel on appeal, to "bolster" the credibility of the Government's inmate witnesses. Under the circumstances, i. e., the assault having taken place in a penal institution and the only witnesses to the assault having been other inmates, it is not surprising that testimony concerning prison life in general, and prison behavioral codes in particular, would surface. Any possible error in this regard is, in our view, harmless. Most certainly such would not justify reversal.
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