United States v. Campbell

• Decision Date: 04 January 1972
• Docket Number: No. 71-1055,71-1056.,71-1055
• Citation: 453 F.2d 447
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Boyd Henson CAMPBELL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joseph Lonnie JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

453 F.2d 447 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Boyd Henson CAMPBELL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Lonnie JOHNSON, Defendant-Appellant.

Nos. 71-1055, 71-1056.

United States Court of Appeals, Tenth Circuit.

January 4, 1972.

Jack Speight, Asst. U. S. Atty. (Richard V. Thomas, U. S. Atty., and Tosh Suyematsu, Asst. U. S. Atty., on the brief), for plaintiff-appellee.

Arthur T. Voss, Denver, Colo., (Alan B. Johnson, Cheyenne, Wyo., on the brief), for defendants-appellants.

Before PHILLIPS, HOLLOWAY and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Campbell and Johnson were charged in separate, one count indictments with unlawfully transporting in interstate commerce a stolen 1969 Chevrolet automobile, knowing the same to have been stolen, and in the same count each was also charged with aiding and abetting the other in such transportation. Prior to trial the two indictments were consolidated for purposes of trial and the ensuing trial by jury culminated in guilty verdicts as to both defendants. Each now appeals.

Counsel poses the issues here to be resolved as follows: (1) Did the trial court's denial of Johnson's motion for a continuance deny Johnson the effective assistance of counsel and a fair trial; (2) was the testimony of Officers McGowan and Lawson of the Charlotte, North Carolina, Police Department relevant and material to the issues of the case and did it prejudice the defendants before the jury; and, (3) were the jury verdicts supported by substantial evidence or by inferences reasonably flowing from the evidence? Before addressing ourselves to each of the matters thus raised, brief reference to the evidence adduced upon trial will place the issues in context.

On June 1, 1970, a garage in Reidsville, North Carolina, was broken into and the 1969 Chevrolet automobile described in the indictments was stolen therefrom. On June 26, 1970, Campbell and Johnson were arrested at the Bronze Boot Motel in Cody, Wyoming. The manager of the Bronze Boot Motel testified that Johnson and Campbell checked into the motel on June 15, 1970, with Johnson registering for both of them under the name of "Joe Jackson," and that at the time they registered at the motel they were driving a Chevrolet which was stipulated to be the vehicle earlier stolen from the garage in Reidsville.

According to the motel manager, the two defendants remained at the Bronze Boot for two days, checked out for two days and then returned to the motel where they were staying when arrested. The motel manager also testified that he saw the defendants driving the vehicle in question on the streets of Cody. When the defendants were arrested the vehicle was parked at the motel adjacent to the defendants' room and upon inquiry Johnson advised the arresting officer that the "keys were in the car." Upon cross-examination, the motel manager testified that only Johnson and Campbell checked into the motel, and that he "never saw a blond stocky built fellow" at or around the motel in company of the defendants.

The testimony of Officers McGowan and Lawson, of the Charlotte, North Carolina, Police Department, was that each saw the defendants together in Charlotte, North Carolina, on May 31, 1970.

The defendants' evidence was to the effect that both defendants were indeed in Charlotte on May 31, 1970, but that neither had anything to do with the theft of the car in question from the garage in Reidsville. Rather, according to Johnson, he met a "short, chunky, blond headed" man in a bar in Charlotte on or about June 4, 1970, who said he had his uncle's car with his uncle's permission and invited Johnson to accompany him on a trip "out west." Johnson agreed and the two headed west, picking up Campbell, who was a friend of Johnson's in Canton, Ohio.

Campbell did not testify in his own behalf, but his brother and sister-in-law testified that he (Campbell) arrived at their home in Maryland on June 1, 1970. According to them, Campbell stayed in their home overnight and left the next day without announcement for an undisclosed destination. It was on this general state of the record that the jury returned verdicts of guilty as to both defendants.

Counsel first argues that the trial court erred in denying Johnson's motion for a continuance filed the day before the date previously set for trial. Although the record before us is not entirely clear, it would appear that there was at least a degree of confusion on the part of court and counsel as to just when the case was scheduled for trial.

The record contains a statement by the trial judge that his clerk had sent out a notice of trial on November 25, 1970, notifying counsel that the case was set for trial on December 9, 1970. This was done even though Johnson had not as of November 25, 1970, been arraigned. And it would appear from the record that when counsel was appointed to represent Johnson (sometime prior to December 1, 1970), both he and Johnson had been advised that the case was set for trial on December 9, 1970. In any event, Johnson appeared in court on December 1, 1970, with appointed counsel, at which time he entered a plea of not guilty. It was on this occasion that even though the notice of a trial setting for December 9, 1970, had previously been sent out by the clerk, the trial judge observed that the case "would probably be tried the first week in January."

Campbell had his own appointed counsel who filed on December 3, 1970, a motion for a severance and a motion to suppress. These motions came on for hearing on December 8, 1970, one day before trial. Although, as indicated, the record on this matter is not too clear, it would appear that about a day or two prior to December 8, 1970, counsel for Johnson in conversation with the United States Attorney was apprised that the consolidated cases were actually coming on for trial on December 9, 1970. On December 8, 1970, the trial court heard argument on Campbell's various motions and denied the same. At the December 8 hearing, counsel for Johnson apparently made an oral motion for a continuance. The motion itself is not a part of the record before us. In any event, the motion for a continuance was denied, the court noting that several out-of-state witnesses for the Government, as well as for Campbell, were already en route to the trial.

Apparently the primary grounds urged for a continuance were that counsel desired time to subpoena the "short, chunky, blond headed" man later referred to by Johnson in his testimony and to also subpoena Johnson's girl friend in Charlotte, North Carolina, who...