U.S. v. Franklin
| Decision Date | 12 April 1983 |
| Docket Number | No. 81-1343,81-1343 |
| Citation | 704 F.2d 1183 |
| Parties | 12 Fed. R. Evid. Serv. 1752 UNITED STATES of America, Plaintiff-Appellee, v. Joseph Paul FRANKLIN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Vicki Mandell-King, Asst. Federal Public Defender, Denver, Colo. (Michael G. Katz, Federal Public Defender, Denver, Colo., with her on the brief), for defendant-appellant.
Irving Gornstein, Atty., Washington, D.C. (Wm. Bradford Reynolds, Asst. Atty. Gen., Walter W. Barnett and Harold Levy, Attys., Dept. of Justice, Washington, D.C., with him on the brief), for plaintiff-appellee.
Before McWILLIAMS, LOGAN and SEYMOUR, Circuit Judges.
Joseph Paul Franklin was convicted by a jury of two counts of violating 18 U.S.C. Sec. 245(b)(2)(B) (1976) 1 by shooting and killing two black men who had been using a public facility. On appeal, Franklin contends that: (1) the district court erred in admitting evidence of a prior act under Fed.R.Evid. 404(b); (2) the court admitted certain testimony in violation of his Fifth and Sixth Amendment rights; (3) the court abused its discretion in allowing a Government witness to testify despite the Government's disregard of its open-file discovery policy; (4) the court erred in denying his motion for a new trial; and (5) the evidence was insufficient to support the conviction. We affirm.
Franklin's trial for these shootings lasted seven days and included the testimony of some eighty witnesses. We present here a summary of the evidence viewed in the light most favorable to the Government. See United States v. Blitstein, 626 F.2d 774, 776 (10th Cir.1980), cert. denied, 449 U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981).
On August 20, 1980, two black men, David Martin and Theodore Fields, were jogging with two white women at Liberty Park in Salt Lake City. Martin and Fields were shot and killed between 10:00 and 10:15 p.m. at the intersection of Ninth South and Fifth East as they left the park.
Franklin is 5' 11" tall. At the time of the shootings he had shoulder-length blond hair. He owned a metallic brown 1975 Camaro with extra high gloss and red pin stripes. It had chrome mag wheels, four tires of the same make with white raised letters, plaid vinyl seat covers, dual exhausts, and a spoiler.
Several witnesses described a car and driver near Liberty Park on the night of the shootings. One of the women who was jogging with Fields and Martin noticed a car that "looked like a Camaro," slowly driving the wrong way on a one-way road through the park. She said it looked new and described it as "pretty shiny." Rec., vol. V, at 68. Sefo Manu, who owns a Camaro himself, noticed a Camaro driving the wrong way on the park road. He followed the car as it left the park and turned into a lot. Manu described it as newer than his own 1974 Camaro, dark maroon with red trim, mag wheels, writing on the tires, a spoiler, and a dual exhaust. He said the driver had shoulder-length hair.
Gary Spicer and John Fellows, who both lived near the park, also noticed a dark Camaro with mag wheels. Spicer saw the car park in the lot between his house and the intersection where the joggers were shot, and saw a man about six feet tall get out of the car. Fifteen minutes later Spicer heard shots, saw a flash coming from the lot, and saw the victims at the intersection. He shined a light on a man in the lot who was holding what appeared to be a gun. When the shooting stopped, the man ran to the Camaro, threw a "long object" into the trunk, and drove off. Another witness saw an "orange-brown" Camaro pull out of the lot after the shooting ceased. Two others The Government introduced considerable tangible and forensic evidence at trial. The police had found six cartridges near the spot where Spicer had seen someone. Ballistics tests showed that the bullets had all been fired from one rifle, a type that could fire seven shots and only eject six cartridges. The doctor who performed the autopsy on Fields and Martin testified that their wounds were consistent with seven shots being fired from the field. Tire prints found in the lot were similar to prints that would have been left by Franklin's tires.
described a man wearing a baseball cap and carrying what appeared to be a rifle. Witnesses heard between five and seven shots.
Several witnesses testified about Franklin's activities in Salt Lake City in the ten days immediately before the shooting. He stayed in at least six motels, registering under assumed names and asking motel employees whether his room had ever been occupied or cleaned by blacks.
Mickey Farman-Ara testified at length about an evening she spent with Franklin a few days before the shootings. Franklin told her that he hated blacks. She told him that she disliked two black pimps and they discussed killing them. Franklin showed her two handguns and she noticed a rifle in the closet of his motel room. While driving past Liberty Park, Farman-Ara told Franklin that the east side of the park was predominantly white, the west side was predominantly Mexican, and the middle was where "the blacks and the pimps all hang out ... to pick up the girls." Rec., vol. VI, at 464. Later they again discussed killing the two black pimps. Farman-Ara warned Franklin that he would be caught. He disagreed, saying that "you follow them and you pick out the right time [and] even if it's in a crowd you can just shoot them, and if there's enough cars or something hiding you, ... you can get away with it." Id. at 474.
A day or two before the murders, Franklin stopped his car and called to Lori Jacobs, a lifeguard who was on her way to her job at Liberty Park. He told her that "he didn't go around Liberty Park because there were too many niggers in Liberty Park." Id. at 498. He said, " 'I'll come and visit you in Liberty Park but I won't go swimming because there's niggers that swim there.' " Id. A day or two later, Jacobs saw Franklin driving his Camaro through the park.
About 5:30 the evening of the shooting, Franklin picked up two white women who were hitchhiking near Liberty Park. He told them "that he hated to see white girls with niggers because it wasn't right." Id. at 552. About 9:00 that night the two women saw Franklin driving his Camaro near the intersection where Fields and Martin were shot.
Other witnesses testified about Franklin's activities after the shootings. On September 25, Franklin was arrested in Florence, Kentucky, after a routine check erroneously indicated that his car was stolen. The police found two handguns and two rifles in his motel room. When questioned at the police station, he at first denied ever having been to Utah, then said he had been there five years before, and then conceded he had been there in August. He became nervous when the interrogating officer began to ask about a "double homicide" involving his Camaro there. The officer was called away from the room and Franklin escaped out a window. Franklin hitchhiked to Cincinnati, where he had his hair cut and dyed and bought all new clothes.
In late August or early September Franklin had visited his former wife, Anita Cooper, in Birmingham, Alabama, driving a brown Camaro. In late September or early October, he visited Cooper again. This time he was on foot. His hair was dyed and styled differently and he was wearing new glasses. When she failed to recognize him he laughed and said, " 'Well, ... if I could fool you, I could fool anyone.' " Rec., vol. VII, at 804-05. During their conversation, Franklin Id. at 804.
Franklin was arrested in Florida on October 28. He told the agent who questioned him that he had owned several weapons, particularly handguns and high-powered rifles, and that he considered himself to be an expert in their use. The agent testified:
"Mr. Franklin stated that he considered himself a racist, and he expressed a very strong dislike for the black people and for Jews. And he specifically also stated that he had no remorseful feelings at all at the deaths of these people.
....
"... He specifically talked about the mixing of the black and white races, and expressed with very strong emotion his disapproval of such mixing."
Id. at 739. Franklin refused a hamburger the agent offered him because the agent could not "guarantee [him] that that hamburger [was] not cooked by a nigger." Id. at 752. Franklin acknowledged having been in Salt Lake City from August 15 to August 22, 1980, and described four guns that he had had with him. He said that he had been to Liberty Park but had stopped going because he had seen a lot of racial mixing there. Franklin denied having been involved in the murders.
After his arrest, Franklin telephoned Anita Cooper from the police station in Tampa. Near the beginning of the conversation he said, " " Id. at 806.
While he was in the Salt Lake County Jail awaiting trial, Franklin admitted killing the two joggers to two fellow inmates, Richard Hawley and Robert Herrera. He told Hawley "that he had gone out to a park ... and noticed that there was people out there, blacks and whites associating together, and that he had decided that he was going to do something about it." Id. at 832. He also told Herrera that he did not like seeing "a lot of blacks and whites together" in the park, and so drove around to find a place to park and a place "where it would be best to get a good shot at somebody." Id. at 855-56. He threw his rifle in his trunk and drove away. Later he sold the rifle at a flea market in San Rafael, California. Herrera recited other details of the shooting which he alleged Franklin had told him.
Franklin contests the introduction of evidence that he had assaulted an interracial couple in the Washington,...
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