U.S. v. Davis, 84-1431

• Decision Date: 29 October 1984
• Docket Number: No. 84-1431,84-1431
• Citation: 747 F.2d 440
• Parties: UNITED STATES of America, Appellee, v. Al DAVIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 440

747 F.2d 440

UNITED STATES of America, Appellee, v. Al DAVIS, Appellant.

No. 84-1431.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 12, 1984.

Decided Oct. 29, 1984.

John L. Barnes, Fayetteville, Ark., for appellant.

Steven N. Snyder, Fort Smith, Ark., for appellee.

Before BRIGHT, JOHN R. GIBSON and FAGG, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Al Davis was convicted under 21 U.S.C. Sec. 846 (1982) of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1) (1982). He appeals, arguing that the district court ¹ erred in denying his motion for severance made after the government rested its case and in denying his motion for a new trial or judgment of acquittal. He argues the latter motion should have been granted because the verdict of the jury was ambiguous. We affirm the judgment of conviction.

Davis, Ted Robinson, Ross Wilkinson, James Hilton, and Boyd Bobo, all members of the Bandido Motorcycle Gang, were charged with conspiring to manufacture methamphetamine. After charges against Hilton were dismissed and Robinson pleaded guilty, the case was tried against Davis, Wilkinson, and Bobo. Shortly before the close of the government's case, Davis's counsel cross-examined a witness at length regarding the manufacture of methamphetamine. After the district court interrupted and called counsel to the bench, Wilkinson's counsel objected to the line of questioning, stating that it was prejudicing his client. The district court observed that the testimony was not "helping anybody" but allowed the examination to continue.

Within a few moments the government rested its case. The district court then granted a motion by Bobo for acquittal on grounds of insufficient evidence but stated that it had no sympathy for Bobo and thought he should go to jail. The court denied motions by Wilkinson's counsel for acquittal, for mistrial, and for severance based on Davis's counsel's conduct. It also denied Davis's motion for acquittal. It commented that while it would not have taken the approach used by Davis's counsel, the conduct was not "anywhere near the point requiring a mistrial * * * or severance."

Following an in-chambers conference, Davis's counsel first stated: "In light of the comments which--the court's comments which preceded this, I have been advised by my client that he will not allow the trial to go any further with the possibility of prejudicing anyone else and therefore we will rest right after the government." The court then discussed Davis's concern for a "brother" of the Bandido Motorcycle Gang. Davis's counsel then moved for severance, reiterating that should it be denied, his client would rest his case rather than proceed with a defense "that would be prejudicial." The district court denied the motion but made it clear that it would continue the trial "as long as is necessary for * * * Mr. Davis * * * to put on whatever case you have, whatever case you wish to." It stated that its earlier comments were made only for the purpose of ruling on the previous motions for mistrial and severance. The court called on Davis personally, who confirmed that he had given directions to his attorney to present no defense.

After instructions and closing argument, the case was submitted to the jury, which acquitted Wilkinson but found Davis guilty. The verdict form for Davis contained the additional comment: "We the jury believe that Al Davis was used by the witnesses that testified against him." The jury was polled, and each member confirmed the verdict against Davis.

Davis, as a prelude to his argument that the district court erred in failing to sever his case, asserts that "[r]ather than prejudice the case of his co-defendant Wilkinson, and chilled by the statements of the Court and co-defendant's Attorney, * * * [he] abandoned the presentation of his prepared defense." He states:

Faced with the prospect of injuring the defendant Ross Wilkinson's defense, as made clear out of court, stated in court by Mr. Wilkinson's attorney and implied by the Court, Al Davis was intimidated and forced to abandon the presentation of his intended defense. Mr. Davis felt that he had no real choice and was being deprived of his right to a fair trial by the position of both the Court and the defendant Wilkinson.

He further claims that the "antagonistic, obstructionist conduct of co-defendant Wilkinson's attorey [sic] in court made him aware that pursuing a defense which could prejudice the defendant Wilkinson would not be tolerated." Davis argues that it was crucial that he present his intended defense, which was outlined for the jury in the opening statement. ² He discusses at length the evidence that he would have presented, including the testimony of himself, government agents, and expert witnesses.

The record is dramatically clear that Davis himself decided to present no defense. We appreciate that a person standing trial on criminal charges will be apprehensive and will in all likelihood find the experience a chilling one. We further recognize that when two persons are tried jointly there may be conflicting interests and that one of the parties may well feel concern or even fright over the approach taken by the other. We have carefully examined the record of the trial and find no chilling effect in the comments of the district...