United States v. Callison

• Decision Date: 04 June 1969
• Docket Number: No. 23260.,23260.
• Citation: 408 F.2d 1362
• Parties: UNITED STATES of America, Appellee, v. Norman Dale CALLISON, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

408 F.2d 1362 (1969)

UNITED STATES of America, Appellee, v. Norman Dale CALLISON, Appellant.

No. 23260.

United States Court of Appeals Ninth Circuit.

March 28, 1969.

Rehearing Denied April 25, 1969.

Second Rehearing Denied June 4, 1969.

H. Earl Rogge, Jr. (argued), Tucson, Ariz., for appellant.

Rubin Salter, Jr. (argued), Asst. U. S. Atty., Edward E. Davis, U. S. Atty., Jo Ann D. Diamos, Asst. U. S. Atty., Tucson, Ariz., for appellee.

Before BARNES, BROWNING and CARTER, Circuit Judges.

BARNES, Circuit Judge:

Appellant was convicted of concealing and facilitating the concealment of heroin. He was arrested by officers who, after having his residence and particularly the area near his horse corral under surveillance for the better part of two nights (December 1st and 2nd, 1967) testified that on the second night they saw him stoop and reach toward a log. At that moment, the officers, from their hiding place, shone a flash light on the appellant, who ran, throwing some object away that slithered through the leaves of a tree or bush, and onto the ground. Examination below the tree revealed a rubber container of heroin.

Appellant urges three errors: first, that the trial court committed error in refusing to strike all testimony relating to the surveillance of appellant's house on the day preceding the arrest; second, that the trial court erred in refusing to grant a mistrial "because * * * counsel for appellee contended that the appellant was making his living from the sale of heroin" and commented on the surveillance; and third, that the representation of appellant by trial counsel below was so inadequate as to demonstrate a lack of due process.

We find no merit in any of the points urged.

The trial court had heard no motion to strike the evidence with respect to surveillance until four government witnesses had testified. No objections were made on behalf of appellant when the evidence was introduced. The basis of the objection was that it "had no connection" with appellant.

The trial judge then stated the evidence was immaterial, but that there had been no objection and "I don't see any mischief in it, but it really has no materiality." (T.R. 70.) Counsel for appellant then stated: "I ask simply that the jury be asked to ignore the evidence because of lack of materiality." The court then said:

"THE COURT: Members of the jury, there has been some testimony about observations on the night of December 1st. I am going to say this to you, as far as I know anything about it or can see anything, it is completely immaterial and unless you find some materiality in it, I will instruct you to disregard it, unless you find it is in some way material to some aspect of the events of December 2nd, then you will disregard it. I will leave it to you in that extent." (T.R. 70.)

This apparently satisfied counsel for appellant, for no other or additional motion was made at the close of the prosecution's case, nor at the conclusion of the defense.

The only authority cited by counsel for appellant is 23A C.J.S. Criminal Law § 1060, p. 7, which states:

"The impropriety of a question propounded to a witness may be so flagrant that the evidence adduced is inadmissible although a prompt objection to the question was not interposed * * *." (Emphasis added.)

We cannot reasonably describe this evidence as "flagrantly improper."

Appellant at one point in his brief refers to this evidence as hearsay, which it was not. The one objection made by appellant's trial counsel to hearsay evidence was sustained by the trial judge so quickly neither the witness nor appellant's counsel could finish his sentence (T.R. 30).

As to appellant's second point (with respect to his opponent's jury argument), we note: (1) that government counsel did ask the jury to infer that the appellant sold heroin; that he had to have income from some source if he was to play in poker games involving $900 winnings and losings; that the appellant worked irregularly, and his wife earned $40 per week and there were four children to support. The language specifically charged against the United States Attorney (that the appellant was making his living by...