U.S. v. Duncan, 87-8148

• Decision Date: 29 September 1988
• Docket Number: No. 87-8148,87-8148
• Parties: 26 Fed. R. Evid. Serv. 1473 UNITED STATES of America, Plaintiff-Appellee, v. John W. DUNCAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1528

855 F.2d 1528

26 Fed. R. Evid. Serv. 1473

UNITED STATES of America, Plaintiff-Appellee, v. John W. DUNCAN, Defendant-Appellant.

No. 87-8148.

United States Court of Appeals, Eleventh Circuit.

Sept. 29, 1988.

James W. Ellison (Court-appointed), Burnside, Wall & Daniel, Augusta, Ga., for defendant-appellant.

J. Michael Faulkner, Asst. U.S. Atty., Augusta, Ga., Shelley A. Longmuir, Dept. of Justice, Criminal Div., Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before JOHNSON and HATCHETT, Circuit Judges, and ESCHBACH ^*, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge:

The defendant appeals a jury verdict which found him guilty of kidnapping (18 U.S.C. Sec. 1201) and interstate transportation of a stolen motor vehicle (18 U.S.C. Sec. 2312). The trial judge denied his request for a judgment of acquittal and his alternative motion for a new trial. The defendant was then sentenced to consecutive terms of twenty-five years imprisonment for kidnapping and five years for the Sec. 2312 violation. On appeal, the defendant asserts several alleged trial errors. We will affirm the conviction.

I

In the district court trial, a jury convicted John W. Duncan with abducting nineteen-year-old Elizabeth Whitmire from the parking lot of Wallace Thompson Hospital in Union, South Carolina. Whitmire, a part-time employee of the hospital, was scheduled to work a shift beginning at 10:00 p.m. on the night of September 30, 1986. Shortly before her shift began, Whitmire parked her car in front of the hospital. After she got out of the car, she reached back into it to get some money. The defendant allegedly sneaked up behind her, grabbed her at knife point, and forced her back into the car. As he was driving her away from the hospital, the defendant allegedly told Whitmire that he was heading to Dallas, Texas, in order to kill his ex-wife. The defendant drove Whitmire to a wooded area close to Union where he allegedly raped her twice. They then continued driving, only stopping once to buy gasoline, beer and soda at a Fast Fair convenience store in Laurens, South Carolina.

The defendant allegedly ordered Whitmire to drive from the store, and forced her to drink the beer, whereupon she became ill and vomited. The defendant then took over the wheel. At that point, he told Whitmire that he was in search of his ex-wife's landlady, who lived in McCormick, South Carolina. However, the defendant became confused in his directions and inadvertently drove the car west into Georgia. Because of the defendant's erratic driving pattern, a Georgia police officer tried to chase the car but was not able to overtake it. Shortly thereafter, Whitmire noticed a sign which indicated that they were headed in the opposite direction from McCormick. The defendant turned the car around, and was subsequently caught by a Georgia police officer in Lincolnton, Georgia. The officer ordered the defendant out of the car while Whitmire stayed inside. At the officer's instigation, Whitmire got out of the car to give the police officer her driver's license. When the officer asked to see her registration papers, Whitmire went back to the car, handed the officer the papers, and grabbed his arm. When she was safely behind the officer, she told him that she had been kidnapped and raped. The defendant then tried to flee, but was apprehended.

The defendant claims four bases for the reversal of his convictions. First, he claims that the district court erred when it instructed the jury that all of the essential elements that constitute kidnapping need not be established in order to find guilt. Second, he contends that the district court erred when it ruled on his motion in limine to exclude any testimony or indirect evidence pertaining to the victim's virginity. Third, the defendant argues that the evidence was insufficient to convict him because the evidence did not show beyond a reasonable doubt that he intended to transport the victim in interstate commerce. Finally, he claims that the trial judge erred when he informed the jury that the trial was being transcribed. This information, according to the defendant, reminded the jury that its judgment could be reviewed, and thus made it more likely that the jury would render an erroneous verdict. We reject these contentions and affirm the conviction and sentence.

II

The defendant alleges that the trial court erred in its closing remarks to the jury by instructing them that they could find the defendant guilty of the kidnapping without a showing of all the essential elements of Sec. 1201. ¹ According to the trial transcript, the trial judge instructed the jury:

Guilt my be established, without a showing that the accused did everything constituting the offense charged and acted willfully and he done [sic] it voluntarily, intensionally [sic] with the specific intent to do something that the law forbids. That is to say with a bad purpose to either disobey or disregard the law.

R8-386 (emphasis added). The defendant contends that this jury instruction constitutes reversible error on the kidnapping conviction.

Because at the time that this instruction was given the defendant failed to object to the charge, we will overturn the conviction only for plain error that affects substantial rights. See Fed.R.Crim.P. 52(b); United States v. Brown, 616 F.2d 844 (5th Cir.1980). If the trial judge did indeed inform the jury that all of the essential elements of the Sec. 1201 kidnapping offense need not be proven beyond a reasonable doubt in order to convict, it would be reversible error, see Brown v. United States, 277 F.2d 573, 576 (5th Cir.1960), unless the Government proved that the error was harmless beyond a reasonable doubt. See Vaccaro v. United States, 461 F.2d 626 (5th Cir.1972).

The Government requested a "certificate of error" regarding this aspect of the record on appeal, asking the trial judge to make certain findings with regard to the contested jury instruction. In response, the trial court held a post-trial supplemental hearing. At this hearing, the Court Reporter who transcribed the trial testified that a new computer system was purchased after the trial, but that it was used to transcribe the record. Supp.R. 35. During the trial itself, the Court Reporter had used a regular stenotype machine to transcribe the trial onto a stenotape. The Court Reporter then used the stenotape to transcribe the trial into the new computer system. The Court Reporter further testified that the transcript was unexpectedly lengthy and that he got "pushed toward the end" for time. Supp.R. 38. As a result, the first draft of the transcript was filed without being proofread. Supp.R. 38. The Court Reporter subsequently destroyed the stenotape. Supp.R. 35.

Other possible errors in the computer transcription were brought out during the hearing. A "dictionary" is programmed into the computer containing shorthand phonetic abbreviations for various words. When such an abbreviation is typed into the machine during the trial, the computer "knows" what the full word actually is. However, at the time that this trial was transcribed, the entire dictionary had not yet been developed and was only partially programmed with abbreviations. As a result, errors could easily have resulted if there was a typo in an abbreviation, or a conflict in coding. Moreover, the original stenotape used was stored in folds which the Court Reporter had to flip over in order to type into the computer. An error in transcription could have resulted if the Court Reporter flipped over one fold inadvertently.

During the supplemental hearing, the trial judge noted that the challenged section of the jury instructions was grammatically incorrect, incoherent and uncharacteristic of him. The charge appears to begin with an aiding and abetting theory, and seems to conclude with specific intent or willfulness. Supp.R. 12. The trial judge noted that although he did not enter his entire charge to the jury in his handwritten notes, he remembered that he relied on the Former Fifth Circuit pattern instructions and a treatise by Devitt & Blackmar. Supp.R. 13.

Considering all of the evidence before him, the trial judge concluded that the transcript did not reflect the jury charge as he actually gave it. He certified that, according to his best recollection, the jury instruction that he actually gave was as follows:

Guilt may be established without a showing that the accused did everything constituting the offense charged, because the law recognizes that, ordinarily, anything a person can do for himself can be done by directing the acts of another person. So if the acts or conduct of another person are willfully directed or procured by the defendant, the law holds the defendant responsible for the acts and conduct of the other person, just as though he had committed the act or engaged in such conduct himself.

However, it must be shown that the defendant acted willfully; that is, that he did it voluntarily, intentionally, and with the specific intent to do something that the law forbids; that is to say with a bad purpose either to disobey to to disregard the law.

Supp.R. 17-18.

After reviewing all of the evidence provided at the hearing, the trial judge concluded that his jury charge had been improperly transcribed. Our analysis leads us to agree with the trial judge that there was an error in the transcription, and not with the charge itself.

However, even if the trial judge did make the charge as it was transcribed in the record, we need not reverse the conviction. The primary issue in determining a claim of plain error related to jury instructions is " 'whether this contested part of the charge is so erroneous that when considered in the totality of the charge as a whole and the evidence presented against each appellant, the error is so great as to result in the likelihood of a miscarriage of...