U.S. v. Matlock
| Citation | 675 F.2d 981 |
| Decision Date | 14 April 1982 |
| Docket Number | No. 81-2152,81-2152 |
| Parties | 10 Fed. R. Evid. Serv. 399 UNITED STATES of America, Appellee, v. Donald P. MATLOCK, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Mittendorf & Mittendorf, Union, Mo., for appellant.
Thomas E. Dittmeier, U. S. Atty., Robert T. Haar, Asst. U. S. Atty., St. Louis Mo., for appellee.
Before LAY, Chief Judge, STEPHENSON, Circuit Judge, and GIBSON, * District Judge.
Donald Matlock appeals his jury conviction of possessing and transferring a destructive device. 1 He was convicted of supplying dynamite to four individuals who robbed a jewelry store in Rolla, Missouri. Matlock appeals on the grounds that the district court erred in not dismissing his indictment as too vague to allow him to adequately prepare his defense, in denying his motions for acquittal, new trial, and judgment N.O.V., and in refusing to admit the testimony of Martin Eimer on the grounds that it was impeachment on a collateral matter. We affirm the district court.
The government introduced both physical evidence and the testimony of thirteen witnesses in attempting to prove the chain of events establishing guilt. The government relied heavily on the testimony of David Childs, Gilbert Nash, and Jerry Nash whom Matlock allegedly supplied with the dynamite. 2
In early 1981, David Childs, Kevin Cook, Gilbert Nash, and his brother, Jerry Nash, planned to rob a jewelry store in Rolla, Missouri. To carry out this plan, the group planned to detonate explosives at a power substation in downtown Rolla in order to knock out the power to the jewelry store. They also planned to set off a bomb at a drive-in bank as a diversion.
Donald Matlock, a contractor involved in the demolition, salvage, and construction of housing and a former employer of Childs, had earlier expressed a willingness to help the group obtain dynamite. However, they were unable to find Matlock until January 4, 1981. At approximately 1:00 p. m. on that day, Childs and the two Nash brothers were driving in a maroon van west on Highway 72 in Rolla. They passed Matlock who was driving a backhoe east on the highway. Childs and the two Nash brothers immediately turned their vehicle and caught up with Matlock.
Matlock pulled the backhoe onto a side street and talked with a man whom Childs thought was a Case equipment dealer. Childs approached Matlock and asked him for twelve sticks of dynamite. Matlock responded that he could help Childs but that Childs and the Nash brothers would have to go with him to his house. Childs and the Nashes had noticed that Matlock had been followed by a woman in a white and blue G.M.C. Blazer. This woman was identified as Matlock's girlfriend and fiance Nan Anselm.
After the conversation, Childs returned to the van. Childs and the Nash brothers followed Matlock, who was driving the backhoe, and Anselm, who was driving the Blazer, east on Highway 72 to Vernon Whites Television Store. The Whites were personal friends of Matlock and allowed him to keep equipment and salvage behind their shop. Matlock parked the backhoe behind the repair shop.
Childs and Matlock got into the Blazer with Anselm and proceeded to Matlock's house. The Nash brothers followed in the van.
As the two vehicles traveled to Matlock's residence, they passed an older white van with a TV decal on it. 3 The van was apparently having engine difficulty. Matlock pulled the Blazer off the road in order to assist the driver of the other van. The Nashes also stopped their van. 4 After talking with the driver of the white van, Matlock drove the Blazer, with Anselm and Childs, to his house. The Nashes followed in their van.
Matlock's house was described as an old red brick structure covered with chipped white paint. Matlock took Childs in back of the house where he kept a pit bulldog. 5 After some conversation about the bulldog, Matlock and Childs, followed by the Nash brothers, proceeded to a shed. On the way, Matlock entered his house and returned with a .45 caliber pistol. 6 Childs and Matlock went into the shed and Matlock removed a cardboard box from an old refrigerator. The box contained five large sticks of dynamite, another large stick of dynamite broken into pieces, a smaller stick, blasting caps and several other items. By this time, the Nashes had also entered the shed, saw Matlock remove the cardboard box from the refrigerator and observed the contents of the box.
Matlock told Childs and the Nashes that they could have the box and its contents. Childs asked Matlock how to make a bomb and Matlock told Childs how to detonate the dynamite.
While Gilbert Nash placed the box and its contents in his van, Matlock, Childs and Jerry Nash walked to the front of the house. There, at Matlock's invitation, Childs fired the .45 caliber pistol at a tree. Matlock then brought out a single barrel shotgun and Childs fired it into a tree. Matlock and Childs discussed the pattern the shot made. 7 Matlock invited the three men into the house and gave them beer. 8
Matlock asked Childs whether anyone would be hurt by the dynamite. Childs replied that no one would be hurt but that Matlock should not be surprised if his lights went out that night. Matlock inquired whether they were going to blow up the power station near the skating rink in Rolla. Childs responded that this power station was fairly close to houses and did not distribute the power they wished to disrupt.
Matlock told Childs he did not owe him anything for the dynamite in light of the favors they had exchanged in the past. Matlock asked whether Childs knew the whereabouts of Larry Weber whom Matlock believed had broken into his house.
Matlock also showed Childs and the Nashes a .25 caliber handgun which he said he had purchased for Anselm's protection after the break-in. A .25 caliber handgun was Childs told Matlock that if the robbery was successful they would send him "something." Matlock replied that such action was not necessary.
later found in the search of the Matlock residence and was admitted into evidence. 9
Childs said he and the Nashes had to leave in order to pick up Cook. As they were leaving, Matlock said he hoped no one would be hurt. He then shook the pistol and warned, "if anybody finds out about this, there are people that I know that you can't hide from." Childs and the Nash brothers left the farm.
Childs and the Nashes picked up Cook and, between approximately 6:00 and 6:30 p. m., the four checked into the Manor Inn motel in Rolla. The Nash brothers left to have dinner with their grandmother and Cook and Childs assembled four bombs. When the Nash brothers returned later that evening, Gilbert Nash questioned whether a nine-volt battery would have sufficient power to detonate the charges. Childs, using the unlisted number which Matlock had given him earlier that evening, called Matlock. Matlock confirmed that the battery would be sufficient to detonate the dynamite. 10
Between 3:00 and 4:00 a. m., the next morning, Cook and Childs placed dynamite charges at the Show-Me Power Company electric substation. At approximately 4:30 a. m., the charge at the substation detonated. Then, Cook manually detonated the charge at the bank. Upon hearing both explosions, Childs and Jerry Nash broke into Christopher's jewelry store in downtown Rolla.
On January 9, Childs and the Nash brothers were arrested in College Station, Texas. The three confessed to the bombings in Rolla. Pursuant to a plea agreement, the three named Matlock as the supplier of their dynamite and agreed to testify against him.
Matlock denied that he supplied Childs or the Nashes with dynamite and he presented an alibi defense. The essence of the alibi was that between 1:00 and 2:00 p. m. on January 4, the alleged time of the meeting, Matlock was removing a concrete floor with his backhoe at the Bow Wow dog food factory. He claimed not to have seen or talked to Childs or the Nashes that day.
Matlock testified that he and Anselm were at the plant continuously from approximately noon until he called his brother-in-law at 3:30 p. m. He also testified that he did not have a .45 caliber pistol or a shotgun and that he had never used or possessed dynamite. 11
To establish his alibi, Matlock presented several witnesses. A contractor in the Rolla area, Moe Hogan, for whom Matlock was working at the Bow Wow factory, testified that he let Matlock into the dog food plant between 11:30 a. m. and 12:00 noon on January 4. Hogan returned to the plant between 4:00 and 4:30 p. m. and Matlock was not there. He originally estimated that approximately three and one-half hours worth of work had been completed. However, he conceded, upon cross-examination, that this estimate may have been too great.
Matlock also presented the testimony of Mary Jane Whites and her daughter Linda Langdon. They stated that Matlock and Anselm picked up the backhoe at 10:00 a. m. from the parking area in the rear of their television store and home and returned it at approximately 4:00 or 4:30 p. m. They testified that the backhoe was not at the television shop between 1:00 and 2:00 p. m. and that Matlock did not return before 4:00 p. m. On cross-examination, Whites and Langdon admitted that they were friends of Matlock and that Whites Matlock's brother-in-law and employee, Larry Karnes, testified that at 3:30 p.m. Matlock called him. Matlock allegedly told him he was at the Bow Wow plant and that his backhoe had broken down. Matlock asked Karnes to help him. 12 Karnes said he arrived at 4:00 p. m. and that the hydraulic line on the backhoe had broken. 13 He said he followed Matlock in the backhoe and Anselm in the Blazer to the television repair shop where he removed a broken hydraulic line.
and her husband had pledged their property as a bond for Matlock in this case.
Matlock also produced the testimony of his fiance, Nan Anselm. She testified that Hogan let...
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