U.S. v. Munn, 74-1240

• Decision Date: 16 December 1974
• Docket Number: No. 74-1240,74-1240
• Citation: 507 F.2d 563
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leo Carl MUNN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 563

507 F.2d 563

UNITED STATES of America, Plaintiff-Appellee, v. Leo Carl MUNN, Defendant-Appellant.

No. 74-1240.

United States Court of Appeals, Tenth Circuit.

Dec. 16, 1974.

Submitted on the briefs.

Victor R. Ortega, U.S. Atty., and Richard J. Smith, Asst. U.S. Atty., for plaintiff-appellee.

C. A. Bowerman, Albuquerque, N.M., for defendant-appellant.

Leo Carl Munn, pro se.

Before LEWIS, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Munn was convicted by a jury on both counts of a two count indictment charging him with robbery of a federally insured bank. Specifically, count one in the indictment charged Munn, and another, with forcibly taking the sum of $805 in currency from the person and presence of an employee of the Citizens Bank in Albuquerque, New Mexico, and further charged that in committing the aforesaid robbery the life of one Ben Naranjo was placed in jeopardy through the use of a revolver, in violation of 18 U.S.C. 2113(a) and (d), and 18 U.S.C. 2. In count two Munn and his codefendant were charged with stealing $805 in currency from the Citizens Bank, in violation of 18 U.S.C. 2113(b) and 18 U.S.C. 2.

Munn's codefendant pleaded guilty to another bank robbery charge and was dismissed from the present proceeding. As indicated, Munn was convicted by a jury on both counts, and was sentenced to fifteen years on count one, and five years on count two, such sentences to be served concurrently. Munn now appeals his conviction and seeks reversal on a wide variety of grounds. Since one ground for reversal relates to the sufficiency of the evidence, let us briefly summarize the evidence adduced upon trial.

The Government's evidence showed that Munn's codefendant, one Gary John Nekuda, held up a bank employee at gun point and robbed her of some $805 in currency. The robber, Nekuda, ran from the bank to a nearby vehicle which was awaiting him, and Nekuda and the driver of the vehicle fled the scene. It was the Government's theory of the case that Munn was the driver of the getaway vehicle. Jumping ahead a bit in our summarization of the evidence, Nekuda testified in behalf of Munn, and admitted that it was he who robbed the bank, but denied that Munn was the driver of the getaway car.

The Government's evidence tying Munn into the bank robbery was both direct and circumstantial. A bank customer one Dan Garcia, was in the bank at the time of the robbery, and he followed the robber to the getaway car. This witness identified Munn as being the driver of the getaway vehicle. It is quite true that Garcia's was not a positive and unequivocal identification. He conceded that he was not '100% Certain.' Nonetheless Garcia did give a description of the getaway driver that fit Munn, and testified that the driver looked like Munn. In addition, there was other testimony to the effect that during the early investigation of the case Garcia was shown photographs of some seven individuals, and that he had picked out the photograph of Munn as the driver of the getaway car.

The Government offered other evidence which established that Munn and Nekuda were close friends and roommates in an Albuquerque apartment house as of the date of the robbery, had been seen together shortly before the robbery, and then both disappeared immediately after the robbery. It was undisputed that Munn had himself rented the getaway vehicle, which was a U-Haul pickup truck, from a car rental on the day of the robbery, using a fictitious name and a nonexistent address. Additionally Munn's figerprint was found on the left door handle of the getaway vehicle, which had been abandoned after the robbery, indicating, according to the Government, that it was Munn who last closed the car door.

As mentioned, Nekuda testified in Munn's behalf, the latter exercising his right not to testify. Nekuda testified that he had robbed the bank, but that Munn was not the driver of the getaway car. On rebuttal, the Government called two Government agents who testified that when Nekuda was questioned upon his arrest several weeks after the robbery he Nekuda, had at that time indicated that Munn was the driver.

At the conculsion of the Government's case counsel moved for a judgment of acquittal, and upon presentation of all the evidence this motion was renewed. Both motions were denied and error is now predicated on these rulings of the trial court. It is asserted that the evidence is legally insufficient. We do not agree. At this stage of the proceedings, the testimony and the inferences therefrom must be viewed in a light most favorable to the Government. United States v. Frazier, 434 F.2d 238 (10th Cir. 1970), and McGee v. United States, 402 F.2d 434 (10th Cir. 1968). Our study of the record convinces us that there was sufficient evidence typing Munn to the robbery to warrant submission of the matter to a jury and to support the jury's determination that Munn was in fact the driver of the getaway car. The fact that Nekuda exonerated Munn only posed an issue to be resolved by the trier of the facts. The jury has now resolved that matter, and we are not at liberty to disturb its resolution of the matter.

Munn proved to be a difficult client, and had a succession of appointed counsel, four to be exact, and he was satisfied with none. Indeed, Munn had sharp disagreement with all counsel as to how his case was to be conducted. And in addition to a difference of opinion as to trial strategy, Munn physically assaulted three of his lawyers, including the lawyer who ultimately represented him at trial. On the morning of the trial Munn's fourth appointed counsel sought to withdraw because of his differences with Munn. This motion was denied and there is minor suggestion that this was error. We see no error, however, in this ruling. Additionally, Munn's fourth court appointed counsel had filed certain discovery motions which were predicated upon his inability to properly communicate with his client. These were denied, and we perceive of no error under the circumstances of this case. Counsel is somewhat vague as to just what matter he sought to discover, and admits that much of the matter sought would not ordinarily be discoverable by motion. He argues, however, that a different result should obtain because of Munn's noncooperation. We do not agree that a defendant by his own conduct can thus broaden the scope of discovery.

Perhaps the main matter urged on appeal is the sequestration of the defendant during a short portion of his trial. The facts and circumstances surrounding such sequestration should be developed. As mentioned above, Munn had physically assaulted three of his court appointed counsel, and this fact was known to the trial judge. Then, a few weeks before trial of the case, there was a hearing on some motions, at which time Munn, in open court, threatened the court with violence, and referred to certain of his prior counsel as 'fascist pigs.' On that occasion the trial court warned Munn that it would not countenance any type of a disturbance or a scene, and that if upon trial Munn acted improperly he would be taken from the courtroom proper and sequestered in a room in the marshal's office, where he could hear the courtroom proceedings over a building broadcast system.

It was in this setting that Munn disregarded the trial court's earlier warning and created a disturbance in the courtroom just as jury selection was about to begin. Without going into specifics, Munn directed exceedingly foul and abusive language at the trial judge and his counsel. The trial court then ordered Munn sequestered in the marshal's office, where he could hear the proceedings. Munn was also advised that he could from time to time confer with his counsel while he was absent from the courtroom proper.

Actually, Munn was physically absent from the courtroom proper only about one hour and fifteen minutes. He was taken from the courtroom at about 10:00 A.M. on the opening day of his trial. Jury selection then ensued, and after the jury was selected there was a fifteen-minute recess. And then three witnesses were called before court recessed for noon at about 11:30 A.M. At the opening of the afternoon session Munn was brought back into the courtroom proper, upon his promise to behave, and he remained in attendance throughout the remaining two days of his trial.

One other fact in connection with the sequestration of Munn should be mentioned. During the voir dire of the prospective jurors, the trial court was advised, apparently by a marshal, that...