U.S. v. Greschner

• Decision Date: 25 September 1986
• Docket Number: Nos. 84-2032,84-2033,s. 84-2032
• Citation: 802 F.2d 373
• Parties: 21 Fed. R. Evid. Serv. 996 UNITED STATES of America Plaintiff-Appellee, v. John Andrew GRESCHNER, Ronnie Joe Criswell, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 373

802 F.2d 373

21 Fed. R. Evid. Serv. 996

UNITED STATES of America Plaintiff-Appellee, v. John Andrew GRESCHNER, Ronnie Joe Criswell, Defendants-Appellants.

Nos. 84-2032, 84-2033.

United States Court of Appeals Tenth Circuit.

Sept. 25, 1986.

Ira R. Kirkendoll, Asst. Federal Public Defender, Kansas City, Kan. (Charles D. Anderson, Federal Public Defender, Wichita, Kan., was on the brief), for defendants-appellants.

John Andrew Greschner and Ronnie Joe Criswell, pro se.

Alleen S. Castellani, Asst. U.S. Atty., Topeka, Kan. (Benjamin L. Burgess, Jr., U.S. Atty., Wichita, Kan., was also on the brief), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, SEYMOUR, Circuit Judge, and WEST, District Judge ^*.

HOLLOWAY, Chief Judge.

The defendants-appellants John Greschner and Ronnie Criswell timely appeal their convictions and sentences for first degree murder and conspiracy to commit murder. ¹ The cases arose out of a homicide committed at the federal penitentiary in Leavenworth, Kansas.

Government witnesses testified that on October 6, 1983 at a prison stairwell Criswell struck inmate Andreason with a pipe and then both defendants stabbed Andreason with homemade knives, repeatedly inflicting numerous wounds to Andreason's back. The wounds resulted in his death by exsanguination. Some Government witnesses saw only Greschner doing the stabbing of Andreason.

The defendants' version of the incident, through several inmates' and Greschner's own testimony, established a case of self-defense. The witnesses testified that Andreason planned to take over a gambling operation of defendants; Andreason secured a knife and sought help to make his move against defendants; Greschner got word of the threat and also armed himself; an unidentified inmate lunged at Criswell with a knife and Criswell struck this assailant with a pipe; Andreason lunged at Greschner with a knife and Greschner was cut, and Criswell then hit Andreason with a pipe and got Andreason's knife. None of these witnesses saw Criswell stab Andreason. Greschner and Criswell both surrendered the knives they then had. Brief for Appellants at 4-5.

Defendants represented themselves at trial but also had the assistance of two court appointed attorneys. The jury trial resulted in verdicts of guilty as to both defendants, after about two days of deliberation. On appeal, the defendants do not challenge the sufficiency of the evidence to support their convictions, but they do strenuously argue, among other things, that the trial court committed reversible error in the following respects: (1) by failing to admonish the witnesses not to discuss their testimony during the course of the trial after a motion for sequestration of witnesses; (2) by refusing to appoint a penologist at the Government's expense to assist in the defendants' preparation for trial and to testify on their behalf; (3) by refusing to subpoena certain lay witnesses at the Government's expense; (4) by refusing to declare a mistrial, sequester the jury, or conduct additional voir dire of the jury after an allegedly prejudicial newspaper article was published during the fourth day of trial; (5) by improperly allowing a Government attorney to question defense witnesses Marone and Crenshaw about convictions over ten years old; and (6) by erroneously limiting Criswell's questioning of Charles Gary, who was testifying for the defense, about his state of mind during a prison free-for-all.

I

Prior to trial the defendants requested that the court sequester prospective witnesses pursuant to Fed.R.Evid. 615. I R. 56. This Rule provides in pertinent part: "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion." Fed.R.Evid. 615. The trial court granted the request. II R. 167. After the second prosecution witness concluded his testimony, the defense suggested that he "be sequestered away from the other witnesses until such time as they have testified." VII R. 265. The court denied this request, noting that it had "never adopted that rule of sequestering witnesses after they have testified." VII R. 265. On appeal the defendants argue that Rule 615 requires not only that prospective witnesses be excluded from the courtroom, but also that they be prohibited from discussing the case with other witnesses. We agree.

The trial judge was in error in his view that the Rule does not include this protection. Our decisions have made clear that "a circumvention of the rule does occur where witnesses indirectly defeat its purpose by discussing testimony they have given and events in the courtroom with other witnesses who are to testify." United States v. Johnston, 578 F.2d 1352, 1355 (10th Cir.), cert. denied, 439 U.S. 931, 99 S.Ct. 321, 58 L.Ed.2d 325 (1978). Denial of such protection of the Rule creates a clear risk of reversal. See United States v. Buchanan, 787 F.2d 477, 484-85 (10th Cir.1986); United States v. Prichard, 781 F.2d 179, 183 (10th Cir.1986). United States v. Johnston, 578 F.2d at 1355. After review of this record we conclude, however, that the error was harmless under 28 U.S.C. Sec. 2111 and Fed.R.Crim.P. 52(a), and not one requiring reversal. ² In this circuit, the defendant must make a showing of probable prejudice or an abuse of discretion as a predicate to reversal based on a trial court's disregard of Rule 615. See United States v. Buchanan, 787 F.2d at 485; United States v. Prichard, 781 F.2d at 183 (10th Cir.1986); see also United States v. Johnston, 578 F.2d at 1355-56. Here no such showing was made, for the defendants have done nothing more than speculate about the possibility of conversations between the witnesses. See United States v. Prichard, 781 F.2d at 183 & n. 2; United States v. Johnston, 578 F.2d at 1356. Such conjecture does not provide this court with any meaningful guidance in assessing the potential for actual prejudice to the defendants or of an abuse of discretion, and we will not reverse since no such showing was made.

II

The defendants argue that the trial court erred in denying their motion to appoint a penologist at the Government's expense. Prior to trial, the defendants asked the court to appoint Bill Scott as a penologist, arguing that such assistance was guaranteed by the Criminal Justice Act. I R. 121. That statute provides as follows:

Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for an adequate defense may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court ... shall authorize counsel to obtain the services.

18 U.S.C. Sec. 3006A(e)(1) (1982). The trial court conducted a hearing on the motion. At this hearing, defendant Greschner argued that Scott had obtained expertise on prison environments by virtue of his experience as an inmate and prison administrator. Greschner also contended that Scott's testimony was necessary for the jury to fully understand the danger of living in a federal penitentiary. V R. 7-10. The trial court denied the motion. On appeal, the defendants contend that the ruling was erroneous under Sec. 3006A(e) and that it violated their Fifth Amendment right to due process.

We reject both contentions. The court need not appoint an expert unless it is convinced that such services are necessary to an adequate defense. Christian v. United States, 398 F.2d 517, 519 (10th Cir.1968). Furthermore, it is the defendant's burden to make a showing of necessity. See United States v. Mundt, 508 F.2d 904, 908 (10th Cir.1974), cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 103 (1975).

The district court found four shortcomings in the defendants' proffer. First, the court rejected Scott's qualifications as an expert. V R. 10. Second, the court reasoned that the same testimony could be given by other witnesses. II R. 153; V R. 10. Third, the court believed that the evidence would have little probative value because Scott did not know the particular circumstances surrounding the defendants' confinement. II R. 153; V R. 10. Finally, the court stated that the defendants had failed to provide sufficient information regarding Scott's location. II R. 153. We find no error in the rulings under Sec. 3006A(e)(1). ³ See United States v. Deutsch, 599 F.2d 46, 49 & n. 5 (5th Cir.) (applying "clear error" standard in reviewing trial court's findings of fact under Sec. 3006A), cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979).

Further, the defendants contend that the ruling violated their Fifth Amendment right to due process. The Supreme Court has long held that indigents are entitled to the "basic tools of an adequate defense." Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971); see, e.g., Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956) (Equal Protection Clause requires state to provide indigent with free trial transcript on first appeal as of right). Recently, the Court extended this principle to the use of psychiatric experts. See Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 1097, 84 L.Ed.2d 53 (1985).

Without deciding whether the constitutional guarantees apply with respect to the services of an expert witness such as Scott, we feel that the defendants here have not made an adequate showing of need for the penologist as a predicate for their constitutional claim. See Coleman v. Brown, 802 F.2d 1227 (10th Cir.1986) According to the defendants, Scott would have testified that prison inmates cannot safely seek assistance from outside "establishment" figures. Even conceding that this evidence would have been admissible, we do not think the defendants were deprived of any substantial benefit. See Caldwell v. Mississippi, 472 U.S. 320, --- n. 1, 105 S.Ct....