U.S. v. McColgin

• Decision Date: 17 May 1976
• Docket Number: No. 75-1683,75-1683
• Citation: 535 F.2d 471
• Parties: UNITED STATES of America, Appellee, v. Junior Wayne McCOLGIN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 471

535 F.2d 471

UNITED STATES of America, Appellee, v. Junior Wayne McCOLGIN, Appellant.

No. 75-1683.

United States Court of Appeals Eighth Circuit.

Submitted April 12, 1976.

Decided May 17, 1976.

Michael B. Stern, Clayton, Mo., for appellant.

David D. Noce, Asst. U. S. Atty., St. Louis, Mo., for appellee; Donald J. Stohr, U. S. Atty., St. Louis, Mo., on the brief.

Before ROSS, STEPHENSON and HENLEY, Circuit Judges.

STEPHENSON, Circuit Judge.

Defendant appeals from a jury conviction on Count I of a two-count indictment charging that on or about November 6 1974, he passed a falsely made and counterfeited obligation of the United States, a $20 Federal Reserve note. 18 U.S.C. § 472. He alleges: (1) insufficiency of the evidence; (2) denial of a fair trial on account of the prejudicial questioning of two government witnesses on the part of the trial court; ¹ and (3) abuse of discretion by the trial court in denying appellant's motion for a new trial on the ground of newly discovered evidence. ² We affirm.

Count I charged the passing of the counterfeit note at the Spot Tavern, St. Louis, Missouri. Count II, upon which the jury acquitted, charged the passing of a similar counterfeit note at the Star Service Station on the same date.

The principal evidence against the defendant consisted of: the testimony of an accomplice regarding defendant's procurement of the counterfeit note about November 1, 1974; the testimony of Georgia Reagan, barmaid at the Spot Tavern, that she received the $20 note from defendant on November 3, 1974; the testimony of Roy Glosick, manager of the Spot Tavern, that he saw defendant in the tavern on the evening of November 3; the signed statement of defendant given to Special Agent William Noonan of the United States Secret Service, that defendant passed two counterfeit $20 bills, one at the Spot Tavern and one at the Star Service Station on or about November 6, 1974. It was stipulated that both $20 bills were counterfeit.

Appellant's challenge to the sufficiency of the evidence to convict on Count I is premised largely on the basis that the acquittal on Count II indicates that the jury relied strongly on the testimony of Roy Glosick and Georgia Reagan of the Spot Tavern and gave little weight to defendant's confession and other corroborating evidence which applied equally to Count II upon which the jury acquitted.

In reviewing the sufficiency of the evidence we, of course, apply the well established rule that "(t)he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942), cited with approval in Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590, 624 (1974). Likewise, we must accept as established all reasonable inferences from the evidence that tend to support the action of the jury. United States v. Overshon, 494 F.2d 894, 896 (8th Cir.), cert. denied, 419 U.S. 853, 878, 95 S.Ct. 96, 142, 42 L.Ed.2d 85, 118 (1974). It is not within our province to speculate as to the reasons for jury conviction on one count as opposed to another. It may have been a compromise, United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 135, 88 L.Ed. 48, 50 (1943); a matter of lenity, Dunn v. United States, 284 U.S. 391, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356, 358 (1932); or, as appellant suggests, at least partial reliance on the testimony of witnesses Glosick and Reagan. In any event our sole duty is to determine whether there is substantial evidence to support the verdict of guilt on Count I.

On November 1, 1974, accomplice Lacy took appellant to a tavern where appellant paid an unnamed individual $5 for two $20 counterfeit bills, the backs of which were light green. On November 3, Georgia Reagan waited on appellant in the Spot Tavern and recalled receiving a $20 bill from appellant which looked like it had been washed it had a "faded out green" color. The following day, November 4, when Roy Glosick, tavern manager, opened a new bank account he learned that the faded bill was counterfeit. On January 15, 1975, appellant after being warned of his Miranda rights signed a written waiver of his rights including the right to counsel and signed a two-page written statement in the presence of Special Agents Noonan and Watson. In the statement appellant recited that "on or about November 4, 1974," he received two $20 counterfeit bills from Joe Lacy. The next day appellant and Lacy attempted to procure some more counterfeit $20 bills but were unsuccessful. Appellant concluded his written statement as follows:

The next day, Joe Lacy went to work and we never again returned to Illinois. On this date, I got rid of the two counterfeit $20 bills, which Joe Lacy had given to me, passing one at the Spot Tavern and one at the Star Service Station on South 7th.

I have read this statement, consisting of two pages, and it is true and correct, to the best of my knowledge.

/s/ Junior W. McColgin

JUNIOR WAYNE McCOLGIN

Date: January 15, 1975

Appellant did not testify. He offered the testimony of his wife, Edith McColgin. She testified in substance that on November 6, 1974, she and her husband were in the Spot Tavern; they were accompanied by friends Donald Littlefield and Beverly Drake; the barmaid who waited on them was Gracie Maddox; she noted Georgia Reagan's presence in the tavern but she never waited on them or came to their table.

We are satisfied from our examination of the record that the evidence of guilt is overwhelming. The confession was amply corroborated. Opper v. United States, 348 U.S. 84, 93, 95 S.Ct. 158, 164, 99 L.Ed. 101, 108 (1954); Smith v. United States, 348 U.S. 147, 156, 75 S.Ct. 194, 199, 99 L.Ed. 192, 200 (1954). There were discrepancies in dates, i. e., appellant in his confession indicates the bills were passed on November 6, whereas Glosick and Ms Reagan indicate it was November 3, the night before the bank deposit was made on November 4. Discrepancies in testimony such as dates are not uncommon. It was for the jury to determine the facts. We find the insufficiency contention to be without merit.

Appellant's charge that he was denied a fair trial because of prejudicial questioning of two government witnesses by Judge Regan relates to two incidents that occurred during the trial. After counsel had completed their examination of Agent Noonan and before he left the stand, the court requested him to read the second to last paragraph of defendant's statement (supra, p. 4), and then inquired: Q. "Did he ever deny that he passed them at those two places?" A. "No, sir, he did not." We note that when the statement was originally read to the jury by Agent Noonan he omitted the words "twenty dollar." The other incident occurred in connection with the government's cross-examination of Mrs. McColgin. ³

We view these incidents in light of all the testimony. In this context it appears that the trial court was merely attempting to clarify the witnesses' testimony.

One of the chief roles of the trial judge is to see that there is no misunderstanding of a witness's testimony. The judge has a duty to comprehend what a witness says as much as it is his duty to see that the witness communicates with the jury in an intelligible manner. A trial judge can do this in a fair and unbiased way. His attempt to do so should not be a basis of error. Where the testimony is confusing or not altogether clear the alleged "jeopardy" to one side caused by the clarification of a witness's statement is certainly outweighed by the desirability of factual understanding. The trial judge should strive toward verdicts of fact rather than verdicts of confusion.

Ray v. United States, 367 F.2d 258, 261 (8th Cir. 1966), cert. denied, 386 U.S. 913, 87 S.Ct. 863, 17 L.Ed.2d 785 (1967).

In the instant case there was a considerable delay between the date appellant's statement was given, January 15, 1975, and the date of his arrest on July 28. Agent Noonan testified with respect to other contacts he had with appellant during this period regarding another matter in which appellant was cooperating. It appears that the trial court sought to clarify whether there had been any change in his statement. In any event we find no prejudice.

In the second incident with respect to Mrs. McColgin's testimony, it appears that the court was attempting to clarify what the witness had said in answer to the first question she answered on cross-examination that she did not know the date when she visited the Spot Tavern with her husband. Any inference in the court's questioning that the bill was passed by the defendant was mitigated by the questions of defense counsel. In addition there was no real dispute that a counterfeit bill was passed at the tavern by someone.

"The trial court commands the attention and respect of the jury. Great care must be exercised so as to avoid the appearance of advocacy for a particular party." Scruggs v. United States, 450 F.2d 359, 363 (8th Cir. 1971), cert. denied, 405 U.S. 1071, 92 S.Ct. 1521, 31 L.Ed.2d 804 (1972). We are satisfied from our examination of the record in its entirety that the trial judge fully appreciated his role of impartiality. The instructions to the jury carefully avoided any reflection of the court's view with respect to the...