U.S. v. Grady, 80-2163

Decision Date08 December 1981
Docket NumberNo. 80-2163,80-2163
Parties9 Fed. R. Evid. Serv. 860 UNITED STATES of America, Appellee, v. Alfred Charles GRADY, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Doris Gregory Black, argued, St. Louis, Mo., for appellant.

Robert D. Kingsland, U. S. Atty., Kathianne Knaup, argued, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before HENLEY and McMILLIAN, Circuit Judges, and COLLINSON, Senior District Judge. *

COLLINSON, Senior District Judge.

The appellant, Alfred Charles Grady, is challenging his conviction in the United States District Court 1 of attempting to pass and utter seven (7) falsely made and counterfeited Federal Reserve Notes with intent to defraud, all in violation of Title 18, United States Code, § 472. He was found guilty after a second jury trial on November 25, 1980, 2 and was sentenced on December 5, 1980, to four (4) years' imprisonment. We affirm the conviction.

Evidence adduced at trial disclosed that appellant attempted to purchase two (2) money orders from an employee of the PX Liquor Store in Pagedale, Missouri, on the morning of August 21, 1980. The employee, Mr. James H. Moody, testified that he believed one of the $20 bills offered in payment for the money orders was counterfeit. Moody alerted a fellow employee, John Bratcher, who examined some of the other bills which Moody had received. He subsequently testified that seven (7) of them were "too stiff" and "too thick" and that there were "no visible fibers in the paper." While Bratcher was examining these bills, Moody called the police.

The police officer who answered Moody's call located Grady inside the liquor store. He requested that he step outside into the parking lot and produce identification. He then asked appellant if the counterfeit bill belonged to him. After Grady indicated that it did, the officer placed him under arrest, advised him of his rights and transported him to the Pagedale Police Station. Once at the station, appellant was again advised of his rights and signed a "warning and waiver" form prior to answering more questions about the bills. When this interview had been completed, Grady was surrendered to a Secret Service agent along with the seven (7) purportedly counterfeit bills.

Grady raises six issues on appeal which, he maintains, entitle him to a new trial. Appellant's first argument is that the trial court erred in overruling his motion to suppress statements and evidence which was filed in his first trial. Grady maintains that before he was questioned outside the PX Liquor Store by the police officer, he should have been given his Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant contends that the failure of the officer to so advise him is a basis to suppress his statements as to the ownership of the bills and all the other evidence obtained by means of that statement. The Court rejects this argument.

Miranda concerns itself with the need for special safeguards in the case of an

incommunicado interrogation of individuals in a police-dominated atmosphere resulting in self-incriminating statements without full warnings of constitutional rights.

Id. at 445, 86 S.Ct. at 1612. Subsequent decisions of the United States Supreme Court have emphasized that it is the custodial nature of the interrogation which keys Miranda. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969); Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968). But the custodial situation referred to in Miranda concerned the isolation of a suspect in unfamiliar surroundings "for no purpose other than to subjugate the individual to the will of the examiner." 384 U.S. at 457, 86 S.Ct. at 1619; United States v. Jiminez, 602 F.2d 139 (7th Cir. 1979); United States v. Marzett, 526 F.2d 277 (5th Cir. 1976).

These proscribed circumstances do not compare with those in the case at bar. Grady was not under arrest at the time the questions were propounded to him, nor was he in the type of custodial surroundings which concerned the Miranda court. As stated in United States v. Hamlin, 432 F.2d 905, 908 (8th Cir. 1979):

The warnings delineated in Miranda do not apply to a situation where, as here, the subject ... is not deprived of his freedom in any significant way. "General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding." (Citations omitted.)

Appellant had been asked to accompany the officer outside to the parking lot of the liquor store and produce identification. It can hardly be said that he was interrogated in "police-dominated" surrounding or that he was even in the custody of the officer at the time he answered the question about the bills. Moreover, the fact that Grady was arguably the focus of the investigation at that point does not by itself trigger Miranda. As the Supreme Court held in Beckwith v. United States, 425 U.S. 341, at 347, 96 S.Ct. 1612, at 1616, 48 L.Ed.2d 1 (1975), Miranda and subsequent cases, principally Mathis, supra, squarely base their holdings on the custodial aspects of the situation, not the subject matter of the interview.

For these reasons, we feel that the trial court did not err in denying Grady's motion to suppress.

Appellant's next contention is that the Government engaged in prejudicial misconduct during the cross-examination of a defense witness. The appellant called a Mr. Rozell Johnson as a character witness. He testified as to his acquaintanceship with the appellant as a member of the Black Retailers Association. Johnson also testified that he had loaned Grady $25,000 at one time and that Grady had repaid him. On cross-examination by the government, the following exchange occurred:

Q. Mr. Rosell, is your whole business a clothing store?

A. Yes.

Q. You don't have any businesses on the side?

A. No.

Q. No drug businesses?

A. No what?

No objection to this line of questioning was made at trial so the matter was not properly preserved for appeal. Fed.R.Evid. 103(a)(1). However, the Court may review this aspect of trial for plain error, pursuant to Fed.R.Crim.P. 52(b).

Plain error, in this context, is generally termed as that which has a substantial effect upon the rights of a criminal defendant. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). We find that this question did not substantially prejudice the rights of the appellant and was therefore harmless. It was only asked once and was not referred to in the government's closing argument. This isolated incident is not similar to the egregious and repetitive conduct contemplated and proscribed in Berger, supra; cf. Michelson v. United States, 335 U.S. 469, 481, 69 S.Ct. 213, 221, 93 L.Ed. 168 (1948).

Appellant's next contention is that the trial court erred in permitting the government to cross-examine him and his character witnesses about arrest charges later dismissed. A review of the transcript reveals that such cross-examination of past arrests only occurred with regard to Mr. Terry Lewis, appellant's former counsel. He was called as a government witness to testify that he had never paid Grady $500 for services as a consultant. On cross-examination, appellant's counsel elicited testimony from Lewis that Grady had a good reputation in the community for truth and honesty.

After this testimony, counsel approached the bench where the government requested the Court's permission to cross-examine Mr. Lewis "as to his knowledge of three (3) arrests of the defendant which ... reflect upon the defendant's truth and honesty." 3 The Court, after consideration of Fed.R.Evid. 405(a), determined that such examination was appropriate, reasoning that this line of questioning elicits the witness' knowledge of defendant's reputation and shows whether that knowledge influenced the witness' opinion in any way. We concur in the trial court's ruling.

The Court of Appeals will "rarely and only on a clear showing of prejudicial abuse of discretion disturb the rulings of the trial court on this subject." Michelson v. United States, supra, at 335 U.S. 480, 69 S.Ct. 221. This Court has previously held in Mullins v. United States, 487 F.2d 581, 585 (8th Cir. 1973), that (a) character witness may be cross-examined as to an arrest of defendant whether or not it culminated in the conviction and may even be asked about rumors concerning an event not too remote in time. As stated in Michelson : "(D)efendants in general ... have no valid complaint at the latitude which existing law allows the prosecution to meet by cross-examination an issue voluntarily tendered by the defense." United States v. Michelson, supra, at 45, 69 S.Ct. at 223 (citation omitted).

We find that this cross-examination met an issue "voluntarily tendered by the defense" and was therefore proper. Two of the previous arrests inquired about concerned appellant's honesty and truthfulness and the Court can discern "no prejudicial abuse of discretion" by the district court in allowing the government to conduct cross-examination based upon them.

Appellant's next contention is that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence. Grady submits that the evidence is insufficient to sustain a conviction for attempting to pass and utter a counterfeit note with intent to defraud. He argues that although the government may have been able to prove that he attempted to pass and utter the $20 bills, it has failed to prove that he had the requisite intent to defraud, i.e. knowledge that the bills were counterfeit.

This Court has a standard for testing the propriety of a motion for judgment of acquittal. In Tanner v. United States, 401 F.2d 281, 285 (8th Cir. 1968), cert. denied, 393 U.S. 1109, 89 S.Ct. 922, 21 L.Ed.2d 806 (1969), we held that a trial court must view the...

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