U.S. v. Loman

• Decision Date: 27 June 1977
• Docket Number: 76-1966,Nos. 76-1965,s. 76-1965
• Citation: 551 F.2d 164
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hilda LOMAN and Larry Loman, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 164

551 F.2d 164

UNITED STATES of America, Plaintiff-Appellee, v. Hilda LOMAN and Larry Loman, Defendants-Appellants.

Nos. 76-1965, 76-1966.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 8, 1977.

Decided March 15, 1977.

Certiorari Denied June 27, 1977.

See 97 S.Ct. 2982.

Kenneth L. Cunniff, Richard F. Walsh, Federal Defender Program, Chicago, Ill., for defendants-appellants.

Samuel K. Skinner, U. S. Atty., John E. Burns, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before BAUER and WOOD, Circuit Judges, and SHARP ^*, District Judge.

ALLEN SHARP, District Judge.

The appellants, Hilda Loman and Larry Loman were indicted for assaulting a mail carrier with dangerous weapons in violation of Title 18, United States Code, Section 111. Count I of the indictment alleged that Larry Loman, by means of a dangerous weapon, a hand gun, assaulted a United States postal carrier, Mattie Dright, while she was engaged in the performance of her official duties. Count II charged that Hilda Loman assaulted the same person with a dangerous weapon, a walking stick, while Ms. Dright was performing her official duties. As a result of a trial by jury both Lomans were convicted and subsequently sentenced from which they now appeal.

The evidence discloses that on Saturday, August 17, 1974, Mattie Dright was delivering mail in the vicinity of 64th and Stewart Streets in Chicago, Illinois, when she was approached by Larry Loman who was then carrying a black stick. Stating that he lived at 6463 Stewart Street he asked Mattie Dright about his mail. Mattie Dright had never seen Larry Loman before and informed him that he would have to wait until she got to his house. He then walked back toward 6463 Stewart Street.

A short time later Hilda Loman, also unknown to Mattie Dright, approached Ms. Dright as she was delivering mail on Stewart Street and requested her mail. Ms. Dright informed Hilda Loman that she would have to wait until she arrived at the Lomans' address. As Ms. Dright continued to deliver the mail Hilda Loman followed her nagging her about the mail and threatening her with obscene language. As a result Ms. Dright stopped at a nearby store and called the Post Office to report the harassment and to request help. When Ms. Dright left the store and continued to deliver the mail, both Lomans once again approached her and threatened to take the mail away from her if she would not cooperate with them. Because of this continued harassment Ms. Dright again called the Post Office and the police seeking help.

Within a short time a Chicago police officer responded to the call. The Lomans informed the police officer that Ms. Dright was withholding their aid check. Ms. Dright advised the officer that she did not have the aid check. As a result the police officer informed both Lomans that Ms. Dright did not have the check and that she was not permitted by postal regulations to deliver the check on the street and as soon as Ms. Dright had the check she would deliver it to the house.

The Lomans did not leave promptly as requested by the police officer but made some additional remarks to Ms. Dright. After further request by the police officer the Lomans departed from the scene. As soon as the police officer had left Hilda Loman returned and again harassed Ms. Dright and threatened to take the mail. As a result Ms. Dright took refuge in a liquor store and later returned to the Post Office.

Upon returning to the Post Office Ms. Dright looked in the removal book and found that the Lomans had moved. According to the United States Postal Service regulations welfare checks may not be forwarded whenever the addressee has moved but rather must be marked "undeliverable" before the carrier goes on his route and then returned to the agency office. Failure to comply with these regulations subjects a carrier to disciplinary action.

The same afternoon, after their encounter with Ms. Dright, the Lomans went to the Englewood Post Office and complained to the carrier foreman about Ms. Dright. The carrier foreman told the Lomans that no aid checks were in the mail that day. Larry Loman warned the carrier foreman that the young people in the neighborhood would not tolerate Ms. Dright's attitude and that she would get hurt.

On Monday, August 19, 1974, Ms. Dright was delivering mail near 355 West 65 th Street when she was again confronted by the Lomans demanding their check. Hilda Loman was then carrying Larry Loman's walking stick. Ms. Dright told the Lomans that she did not have the check. The check had arrived at the Post Office that morning, and pursuant to postal regulations, Ms. Dright had sent back the check. The Lomans followed Ms. Dright to a nearby relay box continuing to harass her. On arriving at the relay box, the Lomans blocked the box and Hilda Loman began hitting Ms. Dright on the shoulder and jaw with the walking stick. After being struck at least twice by Hilda Loman, Ms. Dright retrieved a can of mace and sprayed it at Hilda Loman. When Ms. Dright sprayed the mace can, Larry Loman, standing nearby, fired two shots at her with a small caliber gun and fled from the scene. Because of the injuries sustained, Ms. Dright was unable to return to her official duties as a mail carrier for about two weeks.

The sufficiency of evidence to sustain the convictions of both Lomans is not here challenged. Four issues are presented for review and determination here. They are:

I. Whether the district court abused its discretion in refusing to allow the Lomans to use Ms. Dright's postal file for impeachment purposes or for proof of a violent character.

II. Whether the district court erred in giving its instruction defining reasonable doubt.

III. Whether the district court's instruction on self-defense was erroneous.

IV. Whether the district court erred in characterizing the walking stick as used by Hilda Loman as a "dangerous weapon".

I

At the trial Hilda Loman testified that Ms. Dright hit her and was reaching for a can of mace when she hit Ms. Dright with the walking stick in self-defense. Accordingly, for purposes of cross-examination the Lomans moved for production of Ms. Dright's postal file, which included some complaints against her as a mail carrier. The district court conducted an in camera inspection of the entire file and determined that the information in the file was irrelevant to the case but turned over the material to the Lomans for the purpose of making an offer of proof.

In this regard the district court complied with the mandate of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) as most recently renewed in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

II

Over objection the district court gave the following instruction defining reasonable doubt:

"A reasonable doubt is what the term implies a doubt founded on reason. It does not mean a doubt that may be purely speculative. It means simply an honest doubt that appeals to reason and is based upon reason. If, after considering all the evidence in this case you have such doubt in your mind as would cause you, or any other reasonably prudent person to pause or hesitate before acting in a grave transaction of your own life, then you have the kind of doubt the law regards as a reasonable doubt."

This instruction is challenged primarily on the basis of a line of cases in which instructions equating "reasonable doubt" with "substantial doubt" are questioned. See United States v. Emalfarb, 484 F.2d 487 (7th Cir. 1973); United States v. Bridges, 499 F.2d 179 (7th Cir. 1974); United States v. Lawson, 507 F.2d 433 (7th Cir. 1974); United States v. Shaffner, 524 F.2d 1021 (7th Cir. 1975); United States v. Gratton, 525 F.2d 1161 (7th Cir. 1975); United States v. Crouch, 528 F.2d 625 (7th Cir. 1976), and United States v. Wright, 542 F.2d 975 (7th Cir. 1976).

The message to all district judges is that great difficulty inheres in the process of defining reasonable doubt. One judge of this Court described the process as "playing with fire". See United States v. Shaffner, supra, at page 1023. However, this Court has never held and it does not now hold that giving instructions defining reasonable doubt per se constitutes reversible error. Such option remains with the district judge as mentioned in United States v. Lawson, 507 F.2d 433 (7th Cir. 1974), cert. den. 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975). When the above instruction is considered along with the total charge to the jury we cannot and do not say that reversible error was committed. Although a good deal of semantics is involved in this entire line of cases, there is substantially less prejudice to a defendant in this instruction than in those instructions equating substantial doubt with reasonable doubt.

We are well aware of the warning issued in Wright at p. 987:

"We also observe, however, that the message to the district courts of this circuit having been stated in Crouch in January 1976, and having been repeated here, should now be clear and that a district court giving a reasonable doubt instruction containing the challenged equation notwithstanding a Rule 30 challenge can reasonably expect a reversal. We would assume further that district courts in view of the expressed dissatisfaction by this court with the language would sua sponte eliminate the phrase from their set of standard instructions even in the absence of a Rule 30 objection."

Although the question may be a close one the instruction given in this case does not fall within the ambit of that warning.

This Court is certainly not here intending to encourage or suggest the use of this instruction. We are simply holding that the giving of this instruction does not constitute reversible error.

III

Over objection the district judge gave the following instruction on self-defense:

"The defendant Hilda Loman has raised the defense of self defense. She has no burden of proof to sustain as...