United States v. Childress, 14881.
| Decision Date | 29 June 1965 |
| Docket Number | No. 14881.,14881. |
| Citation | 347 F.2d 448 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Freddie Lee CHILDRESS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Donald A. Schabel, Indianapolis, Ind., for appellant.
Richard P. Stein, U. S. Atty., David W. Mernitz, Asst. U. S. Atty., Indianapolis, Ind., for appellee.
Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.
Freddie Lee Childress, defendant, has appealed from a judgment of conviction on the verdict of a jury, of armed robbery of a clerk in charge of a postal contract station of the United States, at Indianapolis, Indiana, on or about May 22, 1964 in violation of 18 U.S.C.A. § 2114. He was sentenced to imprisonment for a term of 25 years.
1. His court-appointed counsel contends that the use of incriminating statements obtained in violation of defendant's constitutional rights constituted plain error requiring reversal.
Counsel's principal reliance is on Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).1
Defendant was arrested at his home in Indianapolis on June 3, 1964. Later that day he was interrogated at city police headquarters by postal inspector Freeman, investigator Leonard of the postal inspection service and sergeant Gibbs of the Indianapolis police department. During these events defendant did not have counsel present and did not request counsel or an opportunity to consult with a lawyer.
In Escobedo, at 490-491, 84 S.Ct. at 1765 the court said:
"We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied `the Assistance of Counsel\' in violation of the Sixth Amendment to the Constitution as `made obligatory upon the States by the Fourteenth Amendment,\' Gideon v. Wainwright, 372 U.S., at 342 83 S.Ct. at 795, 9 L.Ed.2d 799, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." (Italics supplied.)
The record before us does not show that defendant ever requested, or was ever denied, an opportunity to consult with a lawyer. Hence the principle announced in Escobedo has no application in the case at bar. Moreover, the argument made on defendant's behalf that there can be no presumption of a waiver of counsel, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), is not applicable to this case, because, unless his right to counsel was established by the denial of a request by defendant for an opportunity to consult with his lawyer or a lawyer, he had no such right which could have been the subject of a waiver.
2. We agree with the statement of defense counsel in his brief that at the trial the testimony of postal inspector Freeman that defendant denied being in town on the night of May 22, 1964 was damaging to the defendant's case, "since all other evidence showed that he was in town". We note, as pointed out by defendant's counsel, that the court instructed the jury that if they found "that the defendant made such statement, if any, voluntarily with knowledge of its falsity, then they may consider the statement as circumstantial evidence which may tend to prove consciousness of guilt." It is in this court that defendant for the first time has raised a constitutional question in regard to the admission of this testimony, claiming that although it "was inadmissible * * * under the Fifth and Sixth Amendments to the Constitution of the United States, no objection on this ground" had been made at the trial.
On the constitutional issue now raised for the first time, we cannot say that defendant now has a right to have us pass upon the admissibility of the aforesaid testimony under rule 52(b) of the Federal Rules of Criminal Procedure. 18 U.S.C.A. rule 52(b).2
3. As we are now alluding to the whereabouts of defendant on the night of May 22, 1964, we will also consider his claim that the court erred in denying his request to modify the following given instruction:
The defendant's request was that the court add thereto the following:
"including the fact that the accused voluntarily returned to the State of Indiana."
Substantially, the instruction, as given, was suggested by the Seventh Circuit Judicial Conference Committee on Jury Instructions in its manual, 33 F.R.D. 523, 586, § 6.11 (1963).
We hold that, under this instruction, as given, the jury could properly consider the "voluntary return of the accused to the State of Indiana" if they found such to be a fact. Defendant's proffered amendment, by assuming as a fact that the accused voluntarily returned to the State of Indiana, would have been an invasion by the court of the province of the jury in determining the facts.
This fundamental view is recognized in United States v. Manuszak, 3 Cir., 234 F.2d 421, 424 (1956), where the court said:
We feel that the instruction in the case at bar had been carefully drawn, so that no prejudice can be said to have resulted to the defendant therefrom.
4. Defendant contends that the evidence is insufficient in law to sustain a conviction for the offense charged in the indictment.
At the close of the government's case, defendant moved for a judgment of acquittal, pursuant to 18 U.S.C.A. rule 29(a). The motion was denied and the defendant failed to renew such motion at the close of all the evidence. In this situation, the sufficiency of all the evidence to support the verdict was not presented to the district court and therefore defendant cannot raise it on appeal to this court. United States v. Calderon, 348 U.S. 160, 164, 75 S.Ct. 186, 99 L.Ed. 202 footnote No. 1.; United States v. Manos, 3 Cir., 340 F.2d 534, 536-537 (1965).
5. Moreover, this court has no right to weigh the evidence or...
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