U.S. v. Fountain, s. 80-1642
| Decision Date | 18 May 1981 |
| Docket Number | Nos. 80-1642,80-1643,s. 80-1642 |
| Citation | 642 F.2d 1083 |
| Parties | 8 Fed. R. Evid. Serv. 654 UNITED STATES of America, Plaintiff-Appellee, v. Clayton A. FOUNTAIN and Hugh Thomas Colomb, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David E. Booth, Federal Public Defender, East St. Louis, Ill., Gerald D. Owens, Benton, Ill., for defendants-appellants.
James R. Burgess Jr., U. S. Atty., East St. Louis, Ill., for plaintiff-appellee.
Before SPRECHER and CUDAHY, Circuit Judges, and WILL, Senior District Judge. *
This case involves the killing of a prisoner in a United States prison by two other prisoners. The defendants were convicted of voluntary manslaughter and of conveying a weapon within the prison. In this appeal, they raise a number of arguments regarding: the admission of prior convictions into evidence, the sufficiency of the evidence, double jeopardy, the refusal of a self-defense instruction to the conveying charge, the failure of the government to indict for manslaughter, and the sentences imposed. For the reasons below, we reject their arguments and affirm their convictions and sentences.
Because of the numerous evidentiary issues in this case, it is necessary to set forth the facts in some detail. The government presented evidence at trial to establish the following facts. On September 30, 1979, Charles Stewart, Clayton A. Fountain, and Hugh Thomas Colomb were inmates at the United States Penitentiary, Marion, Illinois. Each man was a resident of the control unit. In the control unit, prisoners are allowed to recreate together in small groups only if they each sign, in advance, a form indicating their desire to recreate together. Previously, Fountain and Colomb usually had recreated with another prisoner, Martin McNally. But on this date, stating that McNally was changing recreation partners, they requested permission to recreate with Stewart, who usually spent his recreation periods alone. Colomb and Fountain presented officials with a request form signed by Colomb, Fountain and Stewart. 1 The three men apparently had never spent recreation periods together before. Fountain and Colomb were told that they could not have joint recreation with Stewart until the request had been approved, and that it could not be approved until the next day, October 1. When they were told this, they insisted that the request be approved immediately. But the officer reiterated that the approvals could not be made until the next day.
On the morning of October 1, a correctional official verified the request by asking each man individually if he had signed the form. Each said he had. Shortly after 8:00 a. m., the officers checked with Stewart, Fountain and Colomb to see if they were ready for outside recreation. Colomb and Fountain said they were ready, but Stewart said that he was not, and that he needed a couple more minutes. Stewart lived in Cell No. 2; Fountain, in Cell No. 10; and Colomb, in Cell No. 9. The door leading from the caged area in which their cells were located to the outside recreation area was located beyond the shower area in front of Cell No. 1. The officer in charge thought that, by the time Fountain and Colomb had walked past Cell No. 2 to the door to be handcuffed, Stewart would be ready. With this thought in mind, the officer opened the doors of all three cells.
When the doors were opened, both Fountain and Colomb left their cells and began walking side-by-side toward both the outside door and Cell No. 2. Both were carrying items in their hands at the time. When the two prisoners reached Cell No. 2, Colomb "jumped" into the cell, Tr. I, 95, "with an overhand swing," Tr. II, 143, leaving Fountain standing outside the cell door.
Immediately after Colomb jumped into the cell, the officers heard a scream. Then Colomb left the cell, followed by Stewart, who was wearing only an athletic supporter. As Stewart left the cell, Fountain and Colomb appeared to be beating him with their hands. Stewart ran to a nearby weight machine as Fountain and Colomb appeared to beat him. At the weight machine, Stewart broke away and ran back toward the door in front of the caged area. Fountain and Colomb again caught up with him. Again he broke away. Again he ran toward the door. But in front of the shower area, which was between Cell No. 1 and the door, he fell to his knees. At this time, the guards saw that he was bleeding and realized that he was being stabbed. Stewart managed to get up and run to the other corner of the cage. As he ran, Colomb and Fountain ran after him, stabbing him. Stewart attempted to fend off some blows by kicking, but was caught again as he ran back toward the weight machine. He collapsed. As he lay collapsed on the floor, both Fountain and Colomb stood over him, stabbing him. Each held a sharpened rod with both hands; each used an overhead stabbing motion, bringing his arms over his head; each stabbed Stewart in the back and head. While they were stabbing him, one of them was heard to say, "die, you son-of-a-bitch." Tr. I, 101.
After Fountain and Colomb had stabbed Stewart numerous times, Fountain walked toward the outside door, where several correctional officers were standing, and stated that if anyone came into the cage, "you're going to get the same thing." Tr. I, II, 101, 162. Then he returned to Stewart and both he and Colomb stabbed Stewart several more times. When they were finished, they walked to the front of the caged area and handed their knives through the "handcuff" window to correctional officials. They then turned around and walked past Stewart's body. Later that day, in an interview with an F.B.I. agent, Fountain asked the agent whether Stewart was dead. Upon hearing that he was, Fountain stated: Tr. II, 226.
Stewart died of over 50 stab wounds. He also had numerous defensive wounds on his arms.
On February 21, 1980, a three-count indictment was filed in the United States District Court for the Southern District of Illinois. Count I charged Fountain and Colomb with first degree murder under 18 U.S.C. § 1111 by having stabbed Stewart to death. Count II charged Fountain with having violated 18 U.S.C. § 1792 by conveying a knife within the penitentiary. Count III similarly charged Colomb with conveying a knife in violation of 18 U.S.C. § 1792.
A three-day jury trial was held in April, 1980. Colomb was represented by counsel, but Fountain, at his own request, represented himself. The district court appointed "standby" counsel to assist Fountain. Both Fountain and Colomb relied on the defense of self-defense. Evidence was presented that Stewart had a violent nature and had committed homosexual assaults on the other inmates, and that these matters were well known in the prison community. Other evidence was presented that Stewart had requested the joint recreation, that Fountain had not "jumped" into Stewart's cell but had been attacked by him, and that Colomb had run to his cell in order to get a weapon, then returned to help defend Fountain.
On Count I, a first-degree murder, the jury found Fountain and Colomb guilty of the lesser included offense of voluntary manslaughter. Both Fountain and Colomb were also found guilty of the conveyance count. Fountain and Colomb received identical sentences: ten years for voluntary manslaughter and five years on the conveyance count. The five year sentence is consecutive to the ten year sentence and both sentences are consecutive to the other sentences they are serving. The defendants now appeal their convictions and their sentences.
We begin with the challenged ruling regarding the admissibility of Fountain's previous convictions. He had been convicted in 1974 of premeditated murder and four related kidnappings. He argues that the trial court abused its discretion regarding the evidence of previous convictions in several ways. First, he argues that the court unnecessarily delayed ruling on his motion to exclude the prior testimony, thus handicapping him in his trial preparation. Second, he argues that the court's evidentiary ruling was improper because the judge failed to articulate the balancing process used. Finally, he argues that the ruling allowing admission of the prior convictions was erroneous as a matter of law. We conclude that there is no showing of clear abuse of discretion.
First, we consider the trial court's delay. Three weeks before the trial, Fountain filed a Motion in Limine to prevent the government from introducing evidence of his prior convictions. The day after that motion was filed, it was discussed at the pre-trial conference, but no ruling was made on it. Fountain argues that the court's failure to rule on the motion at that time violated Fed.R.Crim.P. 12(e).
Fed.R.Crim.P. 12(e) states that "(a) motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial ...." At the pre-trial conference, the court indicated that, since the evidence could only be allowed if the defendant testified, there was no need to have a hearing prior to that time. The court did offer to hold a hearing earlier, if the defendant wanted to "commit (him) self" to testifying.
This issue certainly could have been decided by the trial court before trial. Advance planning is in the best interest of the parties and of the judicial system. As the court held in United States v. Cook, 608 F.2d 1175, 1186 (9th Cir. 1979) (en banc opinion), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980), "(t)rial by ambush may produce good anecdotes for lawyers to exchange at bar conventions, but tends to be counterproductive in terms of judicial economy." 2 Further, we conclude that the trial court's requirement that the defendant "commit himself" to testifying, should the convictions...
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