U.S. v. Mahone

Decision Date23 February 1976
Docket NumberNo. 75--1931,75--1931
Citation537 F.2d 922
Parties1 Fed. R. Evid. Serv. 557 UNITED STATES of America, Plaintiff-Appellee, v. Otha Lee MAHONE, Defendant-Appellant. . Heard
CourtU.S. Court of Appeals — Seventh Circuit

Calvin K. Hubbell, Valparaiso, Ind., for defendant-appellant.

John R. Wilks, U.S. Atty., Fort Wayne, Ind., Richard A. Hanning, Asst. U.S. Atty., Hammond, Ind., for plaintiff-appellee.

Before PELL, BAUER, Circuit Judges, and PERRY, Senior District Judge. *

BAUER, Circuit Judge.

Appellant challenges his conviction under 26 U.S.C. §§ 5861(d) and (i) for possessing a sawed-off shotgun not registered to him and not identified by a serial number. The principal questions raised on appeal concern the legality under the Fourth Amendment of the seizure of the shotgun, the propriety of the trial judge's refusal to give an 'absent witness' instruction and his refusal to let counsel for the defendant refer to the 'absent witness' in the final argument, and the procedure to be followed by the trial judge in admitting evidence of the defendant's prior conviction for impeachment purposes under Federal Rule of Evidence 609. We affirm the conviction.

I.

In the early morning of March 26, 1975, four East Chicago, Indiana, police officers in an unmarked car responded to a radio call reporting an armed robbery at the Soul Snack Shop at the corner of 150th and Alexander Streets in East Chicago. At the scene, a witness told the officers that he observed 'three carloads of subjects' armed with weapons and that one of the cars was a black over blue Plymouth. The officers then left the shop and patrolled the area.

About fifteen minutes later they say a black over blue Plymouth pull to the side of the road behind a parked car about one block from the snack shop. The policemen pulled behind the Plymouth, preventing it from moving. The officers then left their car with their weapons drawn, two officers going to either side of the Plymouth. As they approached the right side of the Plymouth, one of the policemen, Officer Belzeski, saw the passenger in the front seat holding a weapon. While ordering the front seat passenger to drop the weapon, Officer Belzeski saw the passenger in the right rear seat, the defendant, place a weapon on the floor of the car. After the suspects left the Plymouth, Officer Belzeski retrieved a sawed-off shotgun from the rear seat floor of the car. The defendant was convicted of possessing the shotgun.

II.

The first issue raised by the appellant is whether the shotgun was lawfully seized. We hold that the seizure was lawful since it occurred during a proper Terry 1 investigative stop.

"A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest' (Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) . . .. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.' Adams v. Williams, 407 U.S. 143, 145--6, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).

The officers here acted upon facts sufficient to justify stopping the suspect's automobile. While investigating an armed robbery, an informant who had personally observed the suspects gave them a description of the make and color of the suspect's car. Within minutes, the officers saw the described car a short distance from the place where the informant had seen it.

We rely on United States v. Adams, 484 F.2d 357, 360 (7th Cir. 1973), in which this Court upheld a Terry stop based on similar facts. The Court in Adams particularly relied upon three elements present in the instant case: (1) a moving automobile, an element which has justified warrantless stops in various police investigation situations, Coolidge v. New Hampshire, 403 U.S. 443, 459--460, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925); (2) an informant's tip based on personal observation, rather than on suspicion or belief, see Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 113, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); and (3) the automobile being stopped within close physical and temporal proximity to the crime being investigated. See United States v. Zapata, 535 F.2d 358 (7th Cir., 1976); United States v. Lovenguth, 514 F.2d 96 (9th Cir. 1975).

The sawed-off shotgun was properly seized as contraband during the stop.

'It is clear that contraband (defined as an item the possession of which in itself is a crime) may be seized in the course of a legal search. Cf. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). The sawed-off shotgun which formed the basis of the offense in the instant case is contraband. See 26 U.S.C. §§ 5841, 5861(d), and 5871; 49 U.S.C. § 781(b)(2).' United States v. Adams, supra, 484 F.2d at 361, n. 2. 2

III.

The appellant's second alleged error involves the absence of testimony at trial by one of the four police officers present during the seizure of the shotgun. During its opening argument the government mentioned that it would show at trial that four officers were involved in the arrest of the defendant. Only three of the officers were called to testify.

The appellant considered the government's failure to produce the fourth officer significant enough to warrant an instruction indicating to the jury that it could draw an inference that the officer's testimony would have been unfavorable to the government. The trial judge refused the defendant's request for such an instruction, and after considerable argument and deliberation refused to permit appellant's counsel to comment on the absence of the witness in his final argument. The appellant claims that is was error for the trial judge to refuse to give the instruction and to forbid comment on the point.

'The rule . . . is that, if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.' Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021 (1893). 3

See also United States v. Grizaffi, 471 F.2d 69, 74 (7th Cir. 1972); United States v. Young, 150 U.S.App.D.C. 98, 463 F.2d 934, 939 (1972); 2 J. Wigmore, Evidence § 285 at 162 (3d ed. 1940); McCormick, Evidence § 272 at 656 (2d ed. 1972).

The first thing that must be shown before a party can raise to the jury the possibility of drawing an inference from the absence of a witness is that the absent winess was peculiarly within the other party's power to produce. This requirement is met both when a witness is physically available only to the opposing party, Brown v. United States, 134 U.S.App.D.C. 269, 414 F.2d 1165 (1969), and when the witness has a relationship with the opposing party 'that would in a pragmatic sense make his testimony unavailable to the opposing party regardless of physical availability,' Yumich v. Cotter,452 F.2d 59, 64 (7th Cir. 1971); United States v. Blakemore, 489 F.2d 193, 195 (6th Cir. 1973).

In the case at hand, Officer Payne was outside the courtroom during the trial and thus physically available to both parties. Recognizing this, the appellant argues that the officer was not in fact available to him because of the officer's special relationship with the prosecution. We agree with the appellant. While Officer Payne was not employed by the prosecutor, being a state officer in a federal prosecution, he was closely associated with the United States Attorney in developing the case and had an interest in seeing his police work vindicated by a conviction of the defendant.

'(W)here there is likelihood of bias on the part of the person not called as a witness in favor of one party, 'that person is not, in a true sense, 'equally available' to both parties." Yumich v. Cotter, 452 F.2d 59, 64 (7th Cir. 1971).

The second thing that must be shown is that the testimony of the witness would elucidate issues in the case. 'No inference is permissible . . . where the unpresented evidence would be merely cumulative,' United States v. Johnson, 467 F.2d 804, 808 (1st Cir. 1972), cert. denied 412 U.S. 909,93 S.Ct. 963, 35 L.Ed.2d 270 (1973), or where it would be irrelevant to the issues in the case, United States v. Emalfarb, 484 F.2d 787 (7th Cir. 1973), cert. denied 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973).

The government contends that Officer Payne's testimony would have been cumulative in view of the testimony of the other officers present at the scene. The appellant contends that Officer Payne's testimony would not have been cumulative since it would have shed light on the allegedly conflicting testimony of two of the other officers regarding the appellant's possession of the shotgun. Officer Belzeski, who was crouched at the right rear window of the car near where the appellant was sitting, testified that he saw something that looked like a weapon in the appellant's hands while the appellant's head was turned toward Officers Arreguin and Payne, who were standing on the left side of the car. Officer Johnson, who was standing behind the car on the right side, testified that the appellant had turned toward the left side of the car and had positioned his body into the right rear corner of the back seat. Johnson thus was unable to see whether the appellant held a weapon. The appellant argues that the testimony of Officer Payne, who purportedly had a full view of the appellant's body from the left side of the car, would have verified Belzeski's somewhat uncertain testimony...

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