U.S. v. Johnston

• Decision Date: 16 June 1978
• Docket Number: No. 77-1158,77-1158
• Citation: 578 F.2d 1352
• Parties: 3 Fed. R. Evid. Serv. 1039 UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Ray JOHNSTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1352

578 F.2d 1352

3 Fed. R. Evid. Serv. 1039

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Ray JOHNSTON, Defendant-Appellant.

No. 77-1158.

United States Court of Appeals, Tenth Circuit.

Submitted March 13, 1978.

Decided June 16, 1978.

Stuart S. Gunckel, Denver, Colo., for defendant-appellant.

John E. Green, Acting U. S. Atty., and Ronny D. Pyle, Asst. U. S. Atty., Oklahoma City, Okl., for plaintiff-appellee.

Before HOLLOWAY, DOYLE and McKAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendants Kenneth Ray Johnston and Huey V. Griffin were indicted for bank robbery and putting in jeopardy the lives of two bank officers at the Bank of Newcastle in Newcastle, Oklahoma, in violation of 18 U.S.C. § 2113(a) and (d). A separate charge was made in count two of the same indictment that defendant Beverly Ann Popejoy did receive, relieve, comfort and assist Johnston and Griffin in order to hinder or prevent their apprehension, trial or punishment in violation of 18 U.S.C. § 3. All three defendants were convicted and Johnston and Popejoy have appealed. This opinion will treat Johnston's appeal of his conviction and sentence, ¹ but because of the separate facts and issues pertinent to defendant Popejoy's appeal, a separate opinion will address her case. ²

Defendant Johnston presents one question for appellate consideration, which he states as follows (Brief of Appellant, 1):

Where the Court sequestered the witnesses, was it prejudicial for the first witness, after testifying, to discuss his testimony with the second witness before the second witness testified?

The background for this issue is as follows. Before the trial commenced the defendant invoked the rule for exclusion of witnesses from hearing the testimony of other witnesses. See Rule 615, F.R.Evid. ³ The trial court then advised all prospective witnesses about the rule and cautioned counsel to advise their witnesses and to be careful that the rule was observed. ⁴

The Government's first witness was one of the bank officers, Ben J. Bishop. He testified that the first robber was a white man, five feet eight or nine inches tall, stocky built, age 39 or 40 with dark brown hair; he was wearing a light colored short-sleeved shirt, with no coat or tie; he was carrying a revolver; and he was the shorter of the two robbers. Bishop identified Johnston as that man. (IV R., 89-92, 104, 115-119).

The Government's second witness was also a bank officer, Robert Jacobs. He testified that he could not identify the first robber. He said the first robber was carrying a revolver, he had large eyes, he was under six feet tall, he was the shorter of the two robbers, and he had light-colored sandy hair. (Id. at 130-34, 148-150, 157).

After Jacobs gave his direct testimony and his cross-examination by the two other defendants on trial, Jacobs was cross-examined by defendant Johnston's counsel. It was then established that Jacobs and Bishop had discussed Bishop's testimony after Bishop left the stand and immediately before Jacobs's testimony. This conversation took place "down the hall a ways," at which time Bishop told Jacobs part of what he had said on the stand. (Id. at 158-59).

Counsel asked that Jacobs's testimony be excluded and that the jury be admonished that they may not consider his testimony. He argued that the rule of sequestration requires not only that the witnesses not be permitted in the courtroom, but also that they not discuss their testimony with one another. The court denied the motion, noting that the court did not advise the witnesses that they should not discuss their testimony among themselves, although it would have so advised had the request been made. The court further noted that it had observed this testimony and concluded that the testimony of this witness did not appear affected by this conversation. (Id. at 159-60).

On appeal, defendant Johnston argues that there was prejudice to him at trial by the admission of Jacobs's testimony after the discussion between Bishop and Jacobs which was "in violation of the court's order excluding and sequestering witnesses. . . ." (Brief of Appellant, 4). More specifically Johnston says that his identification was a critical issue, that since Jacobs could not identify him the identification rested solely on the testimony of Bishop unless it was contradicted by Jacobs, that Jacobs and Bishop were standing side-by-side and yet Bishop claimed to be able to identify Johnston while Jacobs could not do so, although he looked the first suspect in the eye.

Further, Johnston contends that nevertheless Jacobs then corroborated Bishop's description of the first suspect as to height and being shorter than the second man and as to his sandy hair. ⁵ Johnston says, however, that Jacobs had given descriptions to the F.B.I. immediately after the robbery and that the descriptions given to F.B.I. Agent George were not the same as those given in court. (Brief of Appellant, 5). ⁶ Johnston argues there were contradictions in Bishop's position by describing the first suspect as five feet six inches tall with light sandy hair and as shorter than the second man, while Bishop had told F.B.I. agent George that the first man was the taller and that the second man had light brown hair. (VI R. 477-78). Johnston concludes that after Jacobs learned of Bishop's courtroom identification, Jacobs then changed his descriptions of the suspects and testified in a way so as to avoid contradicting Bishop's in-court identification of Johnston. (Brief of Appellant, 5-6), Reliance is placed, Inter alia, on Taylor v. United States, 388 F.2d 786 (9th Cir.), United States v. Littwin, 338 F.2d 141 (6th Cir.), and Beddow v. State, 39 Ala.App. 29, 96 So.2d 175.

The exclusion of witnesses from the courtroom during trial is a time-honored practice designed to prevent the shaping of testimony by hearing what other witnesses say. Taylor v. United States, supra, 388 F.2d at 788. The importance of the rule was emphasized anew by its reaffirmation in Rule 615 of the Federal Rules of Evidence. Rule 615 changes the law and now makes exclusion demandable by a litigant as of right, instead of being merely discretionary with the trial court, 3 Weinstein's Evidence 615-6, with stated exceptions as to certain persons. Moreover 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. See United States v. Littwin, supra, 338 F.2d at 144. ⁷ This should be avoided by instructions to counsel and the witnesses when the rule's invocation is announced, making it clear that witnesses are not only excluded from the courtroom but also that they are not to relate to other witnesses what their testimony has been and what occurred in the courtroom. ⁸

The trial judge in the instant case pointed out that he would have given such an instruction if it had been requested. And the court did, at the point when the motion to exclude Jacobs's testimony was denied, suggest to counsel that they inform their witnesses thereafter not to discuss among themselves the testimony given on the stand. (IV R. 160). Further, as noted, the trial judge said he had observed the testimony and that it would not appear to the court that the testimony of Jacobs had been affected by the conversation.

Our question is whether there was error in not excluding the testimony of Jacobs. The consequence of a violation of the rule was discussed in Holder v. United States, 150 U.S. 91, 92, 14 S.Ct. 10, 37 L.Ed. 1010:

If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt, and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he cannot be excluded on that ground, merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court.

In Holder the Court held there was no error in not excluding the testimony of a witness violating the rule in a murder trial. The test is whether permitting the witness to testify, despite his violation of the rule, is an abuse of the trial court's discretion. Taylor v. United States,supra, 388 F.2d at 788-89. United States v. Littwin, supra, 338 F.2d at 144.

Considering this record as a whole, we are satisfied there was no abuse of discretion in refusing to exclude Jacobs's testimony. There is no indication at all in the...