U.S. v. Thurston, s. 84-1902

• Citation: 771 F.2d 449
• Decision Date: 23 August 1985
• Docket Number: Nos. 84-1902,84-1903,s. 84-1902
• Parties: 19 Fed. R. Evid. Serv. 861 UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel Smith THURSTON, Jr., and Freddie Lee Stewart, Defendants- Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 449

771 F.2d 449

19 Fed. R. Evid. Serv. 861

UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel Smith THURSTON, Jr., and Freddie Lee Stewart,

Defendants- Appellants.

Nos. 84-1902, 84-1903.

United States Court of Appeals, Tenth Circuit.

Aug. 23, 1985.

Thomas D. McCormick, Oklahoma City, Okl., for defendants-appellants.

Ted A. Richardson, Asst. U.S. Atty., Oklahoma City, Okl. (William S. Price, Oklahoma City, Okl., U.S. Atty., with him on the brief), for plaintiff-appellee.

Before McKAY and DOYLE, Circuit Judges, BROWN, Senior District Judge. ^*

WESLEY E. BROWN, Senior District Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a), Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

This case involves the stabbing of an inmate in the Federal Correctional Institution at El Reno, Oklahoma. On March 6, 1984, a grand jury returned a two count indictment against the defendants Nathaniel Smith Thurston and Freddie Lee Stewart, both of whom were inmates at the El Reno correctional facility. The first count charged the defendants with aiding and abetting to commit an assault with a dangerous weapon upon an inmate, Gordon Russell, in violation of Title 18 U.S.C. Sections 2 and 113(c). The second count charged the defendants with aiding and abetting to convey from place to place within the correctional facility a weapon which was designed to kill, injure, or disable an employee, officer, or inmate of that facility in violation of 18 U.S.C. Sections 2 and 1792. The defendants were jointly tried to the same jury. Both defendants were convicted on Count II; and only Thurston was convicted on Count I of the assault charge. ¹ The defendants have asserted a number of questions as to sufficiency of the evidence and other evidentiary rulings before and at the trial. We find the defendants' contentions to be without merit; and accordingly, we sustain the convictions.

We set out the facts in light offered by the Government and as obviously believed by the jury in reaching its verdicts. On January 3, 1984, just a few minutes past 6:00 a.m. after the cell doors had been unlocked, inmates Charles Kelvin Smith and William Culp, who were in the television room on the first floor, heard shouting and screaming coming from the second floor. As they looked in the direction of the cries, they saw an inmate with a knife in his right hand being violently pushed out of the victim Gordon Russell's cell. They recognized this inmate and later Smith identified him in a photographic display as defendant Nathaniel Smith Thurston, whom they had seen several times in the correctional facility. They saw Thurston turn to his left and ran toward the end of the building on the second floor. He then turned around and ran back toward the shower area with the knife still in his hand. He stopped at the shower area momentarily and then ran down the stairs to the first floor, passing within three feet of the witness inmate Smith.

A guard found in a shower stall, close to where the victim had been stabbed, a dark blue "skull cap" made from a piece of underwear and an eight-inch long "shank"--a prison-made knife--wrapped with masking tape on one end. Thurston was the only inmate known to wear a similar skull cap. A fingerprint expert from the Federal Bureau of Investigation identified the fingerprints on the adhesive side of the masking tape used to bind the knife as the fingerprints of defendant Stewart. Thurston called an alibi witness, who stated that he was present with Thurston at the time of the incident and that Thurston never had or handled the knife used in the assault. Stewart did not testify or present any evidence on his behalf.

The defendants contend that there was insufficient evidence to sustain the jury's finding of guilty on Count II, the charge of conveying a dangerous weapon from place to place within the correctional facility. Stewart contends that the evidence of his fingerprints on the knife was inconclusive to support a verdict on the conveyance charge. Thurston points to the conflicting evidence that on the one hand it shows he carried the knife from the victim's cell to the shower area where it was disposed of and on the other his fingerprints were not found on the knife. Thurston also argues that there was no direct proof, other than the testimony that he was forcibly thrown out of the victim's cell amidst the excruciating cries, to support a finding of guilty on Count I that he committed the assault upon inmate Gordon Russell.

In reviewing a claim of insufficiency of evidence to support a jury's verdict of conviction, this Court does not sit as a trier of fact in a de novo trial. Rather, the standard of review for claims of insufficient evidence is "whether after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1970) (emphasis in original). We defer to the findings of a jury, whose function as a trier of fact was to weigh the evidence and to determine whether "a witness spoke the truth or fabricated a cock-and-bull story." United States v. Bailey, 444 U.S. 394, 414-415, 100 S.Ct. 624, 636-637, 62 L.Ed. 575, 593 (1980). Circumstantial evidence is entitled to the same weight as that given to direct evidence in determining the sufficiency of the evidence to support a verdict of conviction beyond a reasonable doubt. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150, 1676-1677 (1954).

The Government irrefutably established that Thurston came out of the victim's cell with a knife in his right hand. As he ran down the walkway, he disposed of the knife in the shower area where it was later discovered. Stewart's fingerprints were found and identified on the tape used to bind one end of the "shank" on the handle. Stewart knew the locations of the wounds inflicted upon the victim. In addition to the testimonial evidence that Thurston carried the knife from the victim's cell to the place of discovery, the jury could have inferred from the evidence that the defendants aided and abetted each other in an earlier conveyance of the knife to the victim's cell where it was used in the assault. United States v. Bedwell, 456 F.2d 448, 449 (10th Cir.1972). Thurston's flight from the victim's cell with a knife in his right hand was "strong indicia of mens rea," Sibron v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889, 1904-1905, 20 L.Ed.2d 917, 936-937 (1968), from which the jury could have reasonably inferred that he participated in the assault. We find each defendant's contentions of insufficient evidence of guilt to be without merit.

Thurston next contends that the district court erred in denying his pre-trial motion to suppress the pre-indictment idenitfication testimony of witness Charles Kelvin Smith. Thurston claims that the pre-indictment identification procedures used by the F.B.I. agent, Bill Brown who was assigned to investigate the stabbing incident, were unnecessarily suggestive, tainting the subsequent in-court identification testimony by eye witnesses Charles Kelvin Smith and William Culp. Thurston's specific complaint that the identification procedures were impermissibly suggestive was that his photograph was the only one of the six blacks who appeared in the photographic display which had a beard and whose hair was braided.

Pared to its essence, the pre-indictment identification procedures are governed by the due process standard. Kirby v. Illinois, 406 U.S. 682, 690-691, 92 S.Ct. 1877, 1882-1883, 32 L.Ed.2d 411, 418 (1972). A pre-indictment confrontation conducted in a manner which is "so unnecessarily suggestive and conducive to irreparable mistaken identification" violates the due process right of an accused, Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967), and a subsequent in-court identification may be excluded if "the suggestive procedures gave rise to a substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968). Thus, even if the identification procedures were found suggestive, the "central question (is) whether under the 'totality of the circumstances' the identification was reliable," Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401, 411 (1972), for "reliability is the linchpin in determining the admissibility of identification testimony." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977). In assessing the reliability of the identification testimony, the Supreme Court has identified five factors among the totality of the circumstances to justify its admission at trial. They are:

The opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Neil v. Biggers, supra. The Court must balance these five indicia of reliability against the "corruptive effect" of the identification procedures to determine whether the in-court identification testimony should have been admitted. Manson v. Brathwaite, supra.

Applying the five-factor analysis to the facts of the case before us, we conclude, in the light...