U.S. v. Smith, 74-1353
| Decision Date | 22 August 1975 |
| Docket Number | No. 74-1353,74-1353 |
| Citation | 521 F.2d 374 |
| Parties | UNITED STATES of America, Appellee, v. Clarence SMITH, a/k/a "Texas Shorty," Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Mark L. Bennett, Jr., Topeka, Kan., for appellant.
Mary K. Briscoe, Asst. U. S. Atty. (E. Edward Johnson, U. S. Atty., and Bruce E. Miller, Asst. U. S. Atty., with her on the brief), for appellee.
Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
The defendant, Clarence Smith, was indicted and tried for the first degree murder of a fellow inmate in the federal penitentiary at Leavenworth, Kansas. The jury returned a verdict of guilty of voluntary manslaughter, and defendant appeals.
Appellant's first argument is that the trial court abused its discretion in allowing evidence of his prior convictions to be admitted. Prior to the start of the trial, the trial court heard appellant's motion for a protective order to prevent the Government from cross-examining him about his prior criminal record. This record included convictions of armed robbery, burglary, and forgery, the latter being the record for his incarceration at Leavenworth. The motion was directed to the convictions of robbery and burglary on the theory they did not pertain to credibility and therefore are beyond the permissible scope of cross-examination for impeachment purposes. The motion was denied, and appellant revealed each of his prior convictions on direct examination.
In United States v. Williams, 445 F.2d 421 (10th Cir.), coappellant Johnson had been advised the Government would be allowed to cross-examine him about his prior conviction of assault with intent to kill. This was before he took the stand in his trial for stealing television sets from an interstate shipment, and he then revealed the prior conviction on direct examination. This court there said:
Appellant relies on Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763, for the proposition that in exercising its discretionary power, the trial court must hold a hearing to determine whether the prejudice resulting from the use of prior convictions outweighs their probative value. A pretrial hearing was held on the motion in the case before us, and appellant's argument therefore appears to challenge the adequacy of that hearing. We do not read Luck or any other case as requiring a hearing as to the admissibility of prior convictions for impeachment purposes. Luck involved the District of Columbia's statutory prior conviction rule and while it is obviously distinguishable in that it involved a statutory prior conviction rule, none of its reasoning requires a hearing in the exercise of the court's discretionary power.
The hearing in the case before us was occasioned by appellant's pretrial motion for a protective order, and we find no abuse of discretion in its denial. The indictment charged murder within a penitentiary. The defendant, the victim, and the eye witness were all inmates incarcerated on prior convictions. It was of practical necessity, therefore, that on voir dire of the jury panel and before the motion hearing, defendant's counsel examined the panel with regard to defendant's obvious status as a convict. During the trial, defendant freely cross-examined the Government's eye witness about his prior convictions. After defendant took the stand, he called the prison records officer for the purpose of showing the victim's convictions. He then called seven inmates, some of whom testified about violence in general at the penitentiary, most of whom testified about the violent reputation of the victim, and all of whom were questioned on direct or cross-examination about their own convictions. Viewing this record as a whole, we cannot see that the trial court abused its discretion or the defendant was unduly prejudiced by either denial of the pretrial motion or subsequent introduction of his prior convictions.
Appellant's second argument is the trial court erred in giving an additional "Allen" type instruction to the jury after they had deliberated only three hours. The jury had so deliberated when released overnight, and was given the challenged instruction upon returning the following morning. Defendant immediately objected on the ground of coercion and prejudice, especially in light of the length of the trial, the volume of evidence received, the possibility of four different verdicts, and the fact that the last indication made by the jury was they were making progress. The instruction here concerned is basically the same as considered by this court in Munroe v. United States, 424 F.2d 243 (10th Cir.). Munroe is dispositive of appellant's contention as to the Allen type instructions given during the deliberation of the jury, and...
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