United States v. Bray, 31006 Summary Calendar.

• Decision Date: 06 August 1971
• Docket Number: No. 31006 Summary Calendar.,31006 Summary Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Benjamin BRAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

445 F.2d 178 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. James Benjamin BRAY, Defendant-Appellant.

No. 31006 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

June 25, 1971.

Rehearing Denied August 6, 1971.

Thomas L. Bass, Macon, Ga., for appellant.

William J. Schloth, U. S. Atty., D. L. Rampey, Jr., AUSA, Asst. U. S. Atty., Macon, Ga., for appellee.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

In this Dyer Act case, 18 U.S.C.A. § 2312, appellant Bray contends (1) that the evidence was insufficient to support the jury verdict against him; (2) that the court below erred in permitting the Government to cross-examine him about his prior criminal record; (3) that the court below erred in permitting the Government to cross-examine him concerning the failure of his witnesses to testify; and (4) that he was denied due process of law because counsel was not appointed to represent him until nine days before his trial. We affirm the judgment below in all respects.

I. SUFFICIENCY OF THE EVIDENCE

The Record reveals that the appellant failed to move for a judgment of acquittal at the close of the evidence. As a general rule, failure to move for an acquittal prevents a reviewing court from considering the sufficiency of the evidence. Sheffield v. United States, 5th Cir. 1967, 381 F.2d 721. Only in an exceptional case, and to prevent a miscarriage of justice, will a reviewing court consider the sufficiency of the evidence when no motion for acquittal has been made. The instant case presents no such compelling situation. The evidence produced was more than ample to support the verdict. The evidence showed that Bray was arrested in Macon, Georgia, on March 18, 1970, for drunken driving. At the time, he was "navigating" a new 1970 Ford Pickup around the streets of Macon in a highly inebriated condition, without a proper driver's license. The same Ford Pickup was on the same day reported to the FBI as a stolen vehicle. The owner of the truck, a man named Turner, testified that his vehicle was stolen on March 6, 1970. Turner testified further that the day before his truck was stolen, he had been drinking with Bray (whom he had only met once before) and a lady friend in a Memphis bar. The three decided to take a trip to Jackson, Tennessee that night. They traveled to Jackson in Turner's new Ford Pickup, with Bray driving because Turner had drunk too much. The next day they returned to Memphis and continued to imbibe in another Memphis bar. In the middle of the afternoon, according to Turner's testimony, they parted company, and when Turner went back to the parking lot where he had left his truck, he discovered that the truck had been stolen. Turner testified that he reported the theft to the local police that same day, and the next day he reported the theft, in person, to his insurance company in Memphis. He said that about a week later he received a phone call from certain persons in Georgia, informing him that his truck was in their front yard and that it had been left there by the appellant Bray. Turner then reported the theft to the FBI. There followed several witnesses who corroborated substantially all of Turner's testimony.

The appellant Bray then took the stand and presented his side of the story. Bray's story coincided with Turner's insofar as their drinking bouts in Memphis and their trip to Jackson, Tennessee were concerned. Beyond that, however, they differed greatly. Bray testified that Turner had asked him to go to Georgia to help him on a welding job. Bray explained further that by this time each of them had picked up a girl friend, so Turner wanted to make the trip in two vehicles since there was not enough room in the cab of the truck for Bray and Turner and two girls. Thus, according to Bray, the two departed on their trip on Friday, March 6, with Turner in an automobile following Bray in the truck.

Bray testified that Turner followed him to Macon, Georgia, where they stopped for more liquor. This was on Saturday night, March 7, according to Bray. Bray stated that at this point he began to think Turner might be up to "no good" and since he, Bray, had a criminal record, he did not want to become involved in any wrongdoing. Therefore, he informed Turner that he did not want to drive the truck any longer; whereupon, according to Bray, Turner left, telling Bray that he would return with another driver. But Turner never returned, and, since Turner had left Bray with the key to the truck, Bray decided to continue driving the truck to look for Turner. This Bray did, all the while continuing to drink beer and whiskey, until he was arrested for drunken driving on March 18. Bray offered no testimony to corroborate his story. The jury obviously chose not to believe Bray's story, and we think there was ample room for the jury to make this credibility choice. Thus, we reject Bray's contention that the evidence was insufficient.

II. EVIDENCE OF PRIOR CRIMINAL RECORD

After taking the stand in his own defense, and raising the subject of his prior criminal record himself, Bray now complains about the Government's cross-examination concerning his prior criminal record. Two exceptions to the rule prohibiting the introduction of a prior criminal record militate against the appellant's position on this point. The first exception is that a defendant who takes the stand to testify in his own defense may be impeached by proof of prior felony convictions. This exception is well recognized in this Circuit. See, e. g., Loper v. Beto, 5th Cir. 1971, 440 F.2d 934. The second exception is that a cross-examiner may go into anything in his cross-examination that was raised by his opponent on direct examination, and as we stated above, Bray himself raised the subject of his prior criminal record on direct examination. McCormick on Evidence § 26, at 43 (1954). Bray argues here, however, that proof of several of his prior convictions should not have been permitted because they were entered on pleas of guilty. Thus, he argues, those convictions have no probative value insofar as his credibility is concerned because they indicated truthfulness in admitting his criminal conduct rather than dishonesty. Bray's argument, of course, misses the point of the impeachment exception. Evidence of prior convictions is admitted to reflect upon the character of a defendant who seeks to earn the confidence of the jury by testifying in his own behalf. The probative fact is not whether he denied or admitted committing the offense for which he was convicted, but whether he committed the offense at all, and, in cases where the conviction rested on dishonest conduct, the probative value of such convictions can be seen quite readily. See Gordon v. United States, 1967, 127 U.S.App.D.C. 343, 383 F.2d 936, 940, cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968). That Bray pled guilty to the prior offenses, of course, does not change the fact that he was found guilty of committing those offenses. Moreover, a guilty plea is often as much a result of an accused's realistic assessment of his chances to be acquitted should he go to trial as it is a result of any altruistic motive to "come clean." McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). We therefore reject the appellant's suggestion that convictions based on guilty pleas are somehow excluded from the exception to the rule against admitting character evidence in criminal...