United States v. Black

• Decision Date: 15 June 1973
• Docket Number: No. 72-1906.,72-1906.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter BLACK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

480 F.2d 504 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Peter BLACK, Defendant-Appellant.

No. 72-1906.

United States Court of Appeals, Sixth Circuit.

Argued February 6, 1973.

Decided June 15, 1973.

George B. Fleshman (Court Appointed), Ashland, Ky., for defendant-appellant.

Eldon L. Webb, Lexington, Ky., for plaintiff-appellee; Eugene E. Siler, Jr., U. S. Atty., James F. Cook, Asst. U. S. Atty., Lexington, Ky., on brief.

Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and YOUNG, District Judge.^*

PHILLIPS, Chief Judge.

Appellant seeks reversal of his conviction under a two-count indictment for falsifying information in connection with the acquisition of a firearm and illegal possession of a firearm. 18 U.S.C. § 922(a)(6),¹ 18 U.S.C.App. § 1202(a)(1).²

The District Court, after receiving the appellant's not guilty plea to both counts, set the trial date for May 10, 1972. The United States Attorney, on that date, moved for a continuance of the trial until June 5 because of the illness and hospitalization of one of the Government witnesses. Trial to a jury was held on June 5 and 6 and a guilty verdict on both counts was returned. The District Court sentenced the appellant to four years' imprisonment on the false information count and two years on the possession count, the sentences to run concurrently.

On February 21, 1972, the appellant, in the company of two other persons, entered a Morehead, Kentucky, discount store and purchased a gun. In connection with this sale, the appellant was asked certain questions by the store clerk, who was barred by law from selling a gun to a person he knew as a convicted felon. 18 U.S.C. § 922(d)(1). One of the questions on Form 4473 of the Alcohol, Tobacco and Firearms Division of the Treasury Department, see 18 U.S.C. § 923(g), was "Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year?" At trial, the clerk testified that the appellant answered this question, "No," when asked before the purchase of the gun. It is uncontroverted that the defendant had been convicted in a Kentucky state court of uttering a forgery and was sentenced to 2 years' imprisonment.

Four separate grounds for reversal are urged by the appellant. He claims that he was deprived of his right to a speedy trial, that certain remarks in the prosecutor's closing argument were prejudicial reversible error, that he was subjected to cruel and unusual punishment and that his privilege against self-incrimination was violated by the trial judge's requiring him to testify first, if at all, in his own defense. We examine these assertions in order.

The appellant's initial contention is that the delay from May 10, when the trial was originally scheduled, to June 5, when it actually was held, deprived him of his Sixth Amendment right to a speedy trial. The relevance of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to this case is uncertain. The Barker case was handed down June 22, 1972, more than two weeks after the trial of this case. Under the Barker test, if there is a "presumptively prejudicial delay," 407 U.S. at 530, 92 S.Ct. 2182, then a four-factor balancing test must be used to determine if the right to a speedy trial has been impaired. Because the three week delay in this case was not presumptively prejudicial, there is "no necessity for inquiry into the other factors that go into the balance." 407 U.S. at 530, 92 S.Ct. at 2192. Because the Barker test is not applicable to this situation, we do not rule on the issue of whether it is to be applied retrospectively.³

The appellant's next assertion is that certain remarks of the prosecutor were prejudicial to him. In his closing argument the prosecutor referred to the importance of the gun laws and their enforcement. During the argument, the Assistant United States Attorney made reference to the shootings of President John F. Kennedy, Senator Robert F. Kennedy, Dr. Martin Luther King and Governor George Wallace. Appellant asserts error in the failure of the District Judge to strike the references and instruct the jury to disregard them.

No objection was made during the trial at the time these remarks were made. It is a long-standing rule of trial practice that a defendant must object to improper statements made by opposing counsel during closing argument to preserve these objections for appeal. Crumpton v. United States, 138 U.S. 361, 364, 11 S.Ct. 355, 34 L.Ed. 958 (1891); Holden v. United States, 388 F.2d 240, 242-243 (1st Cir.) cert. denied, 393 U.S. 864, 89 S.Ct. 146, 21 L.Ed. 2d 132 (1968). The purpose of this rule is to allow the trial judge to attempt to correct the error, if any was committed. Where no objection is made then the court on appeal should intercede only where the error would "seriously affect the fairness, integrity or public reputation of judicial proceedings." United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936); Cf. Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962).

A review of the record in this case convinces this Court that the error, if any, in the closing argument of the prosecutor was not reversible. United States v. Benson, 389 F.2d 376 (6th Cir.) cert. denied, 391 U.S. 903, 88 S.Ct. 1652, 20 L.Ed.2d 418 (1968).

The third assertion of the appellant is without merit and can be disposed of easily. Appellant contends that the sentence imposed by the District Court is a violation of his Eighth Amendment protection against cruel and unusual punishment. The sentences were both well within the limits set by Congress. The maximum punishment for the falsification count was five years' imprisonment or a $5,000 fine or both. 18 U.S.C. § 924. The maximum penalty for the possession count was imprisonment for two years or a $10,000 fine or both. 18 U.S.C.App. § 1202(a). The wide discretion in sentencing vested in the District Court was not abused. United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

Appellant's fourth assertion of error revolves around the propriety of the practice of requiring a defendant, who desires to testify on his own behalf, to testify first, if at all. This practice is based on the theory that the defendant, who is entitled to be present during his trial, should not be allowed to hear his witnesses first and then tailor his own testimony to match theirs. As Professor Wigmore stated it, "the reason for this rule is the occasional readiness of the interested person to adapt his testimony, when offered later, to victory rather than to veracity, so as to meet the necessities as laid open by prior witnesses. . . ." Wigmore, Evidence, § 1869 at 502 (3rd ed. 1940).

At the time of appellant's trial and conviction, this practice was part of the law of two of the states in this Circuit, Kentucky and Tennessee.⁴ It also had been expressly approved by this Court. United States v. Shipp, 359 F.2d 185, 190 (6th Cir.), cert. denied, 385 U.S. 903, 87 S.Ct. 213, 17 L.Ed.2d 134 (1966). This same procedure was also practiced in at least one district court in this Circuit, the instant trial court, and probably in another, the Western District of Tennessee. See, Shipp, supra. Consequently, the defendant's counsel in the instant case was told by the District Judge before the defense was begun that "If the Defendant is going to testify, he has got to testify first."

On June 7, 1972, one day following the jury verdict in this case, the United States Supreme Court struck down the Tennessee statute which mandated that a criminal defendant testify first, if at all, in his own defense. Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972). Speaking through Mr. Justice Brennan, the Court wrote:

". . . a defendant may not know at the close of the State\'s case whether his own testimony will be necessary or even helpful to his cause. Rather than risk the dangers of taking the stand, he might prefer to remain silent at that point, putting off his testimony until its value can be realistically assessed. Yet, under the Tennessee rule, he cannot make that choice `in the unfettered exercise of his own will.\' Section 40-2403 exacts a price for his silence by keeping him off the stand entirely unless he chooses to testify first. This, we think, casts a heavy burden on a defendant\'s otherwise unconditional right not to take the stand. The rule, in other words, `cuts down on the privilege to remain silent by making its assertion costly.\' Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965)." (footnotes omitted) 406 U.S. at 610-611, 92 S.Ct. at 1894.

An alternative holding offered by Mr. Justice Brennan was that the procedure violated the defendant's due process rights.

There can be no doubt that, if the Brooks decision is to be applied to the instant case, the defendant's privilege against self-incrimination has been violated. Our inquiry, thus, must turn to the issue of retroactivity. Should the Brooks decision, handed down on June 7, be applied to the instant trial, which was conducted on June 5 and 6?

The problem of retroactive application of Supreme Court constitutional adjudications in the criminal rights area is a difficult and complex one. We note at the outset of this analysis that the Constitution neither requires nor prohibits the retrospective application of a decision of the United States Supreme Court. Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). As Mr. Justice Cardozo stated it, "the Federal Constitution has no voice on the subject." Great Northern Ry. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932). Each case must proceed on an ad hoc basis, with the tests enunciated by the Supreme Court as the guidelines.

The retroactivity doctrine in constitutional adjudication was born in Linkletter, supra. The Court in that decision for...