U.S. v. Grandison
| Decision Date | 23 December 1985 |
| Docket Number | Nos. 84-5007,s. 84-5007 |
| Parties | 19 Fed. R. Evid. Serv. 557 UNITED STATES of America, Appellee, v. Anthony GRANDISON, Appellant. UNITED STATES of America, Appellee, v. Vernon EVANS, Jr., Appellant. UNITED STATES of America, Appellee, v. Janet Patricia MOORE, Appellant. UNITED STATES of America, Appellee, v. Rodney KELLY, Appellant. UNITED STATES of America, Appellee, v. Anthony GRANDISON, Appellant. UNITED STATES of America, Appellee, v. Vernon EVANS, Jr., Appellant. (L), 84-5008 to 84-5010, 84-6623 and 84-6624. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Fred Warren Bennett, Federal Public Defender, Lalit H. Gadhia, Baltimore, Md., Martha F. Rasin, Annapolis, Md. (Bereano & Resnick, Annapolis, Md., Thomas B. Mason, Asst. Federal Public Defender, and Rodney Kelly, pro se, on brief), for appellants.
Juliet A. Eurich, Asst. U.S. Atty. (Catherine C. Blake, U.S. Atty., Baltimore, Md., Steven M. Sindler and Susan Stevens, Third Year Law Students, U.S. Atty's Office, on brief), for appellee.
Before PHILLIPS, MURNAGHAN and WILKINSON, Circuit Judges.
Anthony Grandison, Vernon Evans, Jr., Janet Patricia Moore, and Rodney Kelly were indicted for conspiracy to violate civil rights, 18 U.S.C. Sec. 241, and witness tampering, 18 U.S.C. Sec. 1512. Those federal charges grew out of the brutal murder of two motel employees, one of whom, Scott Piechowicz, was in a position to identify Grandison as someone who visited the motel in early November 1982. 1 The testimony as to the whereabouts of Grandison was significant to establish Grandison's guilt in a federal narcotics case, initiated in November 1982, for which trial was pending on April 28, 1983, the date of the murders. The narcotics case was then scheduled to commence on May 3, 1983.
The testimony in the civil rights violation and witness tampering prosecution was ample to establish a) the conspiracy and b) the tampering with, indeed the total elimination of, Scott Piechowicz as a witness. All four defendants were convicted of both crimes charged.
Grandison, while he was in jail in January 1983, asked his girlfriend, Nancy Hopson, if she would remember the manager of the motel, Scott Piechowicz, if she saw him again. She was in a position to do so because on another occasion she had been charged with breaking and entering at the motel and Scott Piechowicz had testified against her. Hopson testified before the grand jury that Grandison asked her to take the co-defendant Kelly to the motel to point out Piechowicz to him. 2 She did so. 3 Thereafter, when Hopson visited Grandison in jail, Grandison used the word "dead" in connection with Scott Piechowicz when they discussed Hopson's and Kelly's trip to the motel. According to Hopson, Kelly told her that the drug prosecution should not worry Grandison because Scott Piechowicz "wouldn't be around" for the trial, but would be "injured, hurt or dead."
In March 1983, a suppression hearing in Grandison's narcotics case was held and the Piechowiczes appeared to testify. Before Cheryl Piechowicz testified at the hearing and identified Grandison as the person who had been at the motel on the critical date she was approached by Janet Patricia Moore, one of the co-defendants, who told her "If I were you I'd say I never saw him before in my life." Immediately after the suppression hearing, on March 14, 1983, Grandison, who theretofore had assessed the evidence against him as weak, wrote Moore "[The] white bitch testimony ain't shit" and that Hopson might, at his request, have to take a friend of his to see Kelly because he wanted the friend "to take care of something to be on the safe side." The "friend" to whom Grandison referred was the co-defendant, Vernon Evans, Jr.
On April 22, 1983 an order came down in the narcotics case denying the suppression sought by Grandison. Evidence at trial of the instant case established that Moore visited Grandison at the jail some time between April 22, 1983 and April 28, 1983, and and that on April 26, 1983, Grandison telephoned Evans, who, along with Moore, went to meet with Grandison at the jail. Later on April 26, Evans, Moore and Charlene Sparrow, Evans' girlfriend who was a star witness for the prosecution, picked up Kelly and the group repaired to an apartment where, in a telephone conversation with the jailed Grandison, the "protective glass" situation at the motel was mentioned.
Evans and Sparrow then drove to the motel where the Piechowiczes worked. On the way, Evans told Sparrow they were going to kill someone. However, due to lack of vacancies, Evans and Sparrow were unable to carry out their plan to register at the motel.
There was testimony from another witness, Calvin Harper, that, on the next day, April 27, 1983, Kelly showed him a machine gun equipped with a silencer and that they turned the gun over to Evans, telling him it was for the job. Sparrow and Evans returned to the motel and they spent the night of April 27th there.
On the 28th, Kelly arrived at the motel and picked up Evans. Kelly brought with him a MAC-11 machine gun with an attached silencer which he gave to Evans. Kelly left and Evans and Sparrow went to their own car. Sparrow remained in the car outside the motel, while Evans went into the motel. As he was leaving, according to Sparrow, Evans stated that "anyone was in his way, they was going too."
When Evans, in about fifteen to twenty minutes, ran to the car, Sparrow saw smoke coming out of a silencer attached to a weapon in Evans' possession. Sparrow and Evans drove into the city, where Kelly picked up the car and the canvas bag containing a heavy metal object.
At the trial, positive identification was introduced which located both the gun and Evans at the scene of the crime at about 3:00 p.m. on April 28, 1983. Scott Piechowicz and Susan Kennedy were shot with a MAC-11 machine gun at 3:22 in the afternoon.
After that recital, which does not include all the evidence against the four defendants, we find it amply proven beyond a reasonable doubt that Grandison, Evans, Moore and Kelly conspired to violate the civil rights of Scott Piechowicz and, in the course of effectuating the purposes of the conspiracy, tampered with Scott Piechowicz as a witness.
Following return of verdicts of guilty, the all-too customary panoply of asserted errors was advanced.
The photographs of which the defendants complain showed Susan Kennedy with her fiance and a beach scene of Scott Piechowicz, Cheryl Piechowicz and their child. Testimony extolling the virtues of Scott Piechowicz was also admitted. Objections were lodged on grounds of non-relevance under Federal Rule of Evidence 402 and inadmissibility under FRE 403, because the probative value of the photographs and testimony, even if relevant, was outweighed by the danger of unfair prejudice. As for the relevance contention, we perceive no strength in the argument because Susan Kennedy and Scott Piechowicz were central figures in the crimes that had been charged. They had to be identified.
Even if we assume, without deciding, that the district judge abused his wide discretion under FRE 403, because the probative value of the photographs was "substantially outweighed by the danger of unfair prejudice," at most the error was harmless. 4 Pretty pictures of enticing domestic scenes and endearing remarks about one of the decedents were not likely to influence a jury's determination in the case before us. Indeed, if there was error, beyond any doubt it was harmless. See Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1247-48, 90 L.Ed. 1557 (1946); cf. Fed.R.Crim.P. 52(a). See also United States v. Davis, 657 F.2d 637, 640 (4th Cir.1981); United States v. Tibbetts, 565 F.2d 867, 868 (4th Cir.1977).
Grandison availed himself of his constitutional right to represent himself at trial. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Stand-by counsel was also made available. During the trial from October 5, 1983 to November 3, 1983, Grandison was required to remain seated at the counsel table, and was not permitted to approach the witnesses. Grandison had already been convicted on May 11, 1983 and sentenced on June 13, 1983 in the narcotics case from which the case here on appeal was an outgrowth. The district judge reasoned that the differentiation between Grandison and counsel for the other defendants was significant enough to require that he remain seated and not approach the jury or witnesses, save when making an opening statement and a closing argument.
We find no abuse of discretion in the solicitude for the jury and witnesses which lay behind the judge's ruling. As he pointed out, the requirement that Grandison not approach others in the courtroom was a consequence of his election to represent himself. While Grandison certainly had the right to do that, the exercise of that prerogative should not confer relief from a collateral and incidental disadvantage of his status as a convicted felon. He properly was not permitted to approach within striking distance of witnesses when, as a defendant, he would have no such right, especially bearing in mind that he stood convicted of a crime which provided the district judge with a justifiable basis for concern for the witnesses' psychological, and perhaps physical, well-being.
Balancing conflicts is the recurring job of a district judge. We simply do not regard as valid the assertion that requiring Grandison to remain in his seat at counsel table dissipated his presumption of innocence. Nor do we perceive any justifiable basis for the contention that the failure to sever their trials from that of Grandison created an appearance of guilt by association insofar as Evans, Moore and Kelly were concerned. In matters of restraint of defendants, the...
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