United States v. Christian

• Decision Date: 24 June 1970
• Docket Number: No. 20059.,20059.
• Citation: 427 F.2d 1299
• Parties: UNITED STATES of America, Appellee, v. Vernon George CHRISTIAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

427 F.2d 1299 (1970)

UNITED STATES of America, Appellee, v. Vernon George CHRISTIAN, Appellant.

No. 20059.

United States Court of Appeals, Eighth Circuit.

June 24, 1970.

LeRoy Autrey, Texarkana, Ark., for appellant and filed brief.

James A. Gutensohn, Asst. U. S. Atty., Fort Smith, Ark., for appellee, Bethel B. Larey, U. S. Atty., was on the brief.

Before VAN OOSTERHOUT, Chief Judge, and MEHAFFY and LAY, Circuit Judges.

MEHAFFY, Circuit Judge.

Vernon George Christian, the defendant, was convicted by a jury for having transported in interstate commerce a stolen motor vehicle knowing the same to have been stolen, in violation of 18 U.S.C. § 2312. As a result of said conviction, the court sentenced defendant to the custody of the Attorney General for imprisonment for a period of three years pursuant to the provisions of 18 U.S.C. § 4208(a) (2), making him eligible for parole at such time as the board of parole may determine. We affirm the judgment of conviction.

On this appeal defendant has obviously abandoned the issue of the sufficiency of the evidence raised at the conclusion of the trial, and asserts only that error flowed from the testimony of an FBI agent, who, in relating a statement made to him by defendant on the day following the latter's apprehension, included the sentence "that he had been released from a Federal Correctional Institution at Texarkana, Texas," and that this error was compounded by a statement made by the government attorney in his closing argument, "I don't know where he defendant is from. I know where he has been."

We note at the outset that no objection was made to the testimony of the FBI agent during the course of the trial; that this statement was taken after all proper warnings on the day following defendant's apprehension which was two days after the automobile was stolen in Houston, Texas; that prior to trial a copy of the agent's statement was furnished counsel for defendant and there was no suggestion that the objectionable sentence be deleted; that no objection was made to the agent's testimony; and that the sentence in the government attorney's closing argument was taken completely out of context and, as will be demonstrated by a more complete excerpt from this closing argument, it could not have reasonably been construed by any member of the jury as alluding to defendant's former incarceration for some dereliction or crime not involved in the instant case.

A recitation of the pertinent facts is in order. Mrs. Joella Stilley, a widow employed as a secretary by an oil company with offices in the First City National Bank Building in Houston, Texas, parked her 1965 Chevrolet on February 11, 1969 in an eleven-story commercial parking garage cater-cornered from the bank building. It was raining that day and she left her car in the commercial parking garage to be washed. This location permitted her to walk through the tunnel under the street to her office in the bank building proper. She left her car at 8:00 a. m. and when she returned for it at 5:00 p. m. that day, her car was missing and she reported it as stolen. About 3:45 a. m. on the following morning, February 12, 1969, defendant and one passenger, later ascertained to be Herman Garland Campbell, were observed under suspicious circumstances by the assistant police chief and another police officer in Prescott, Arkansas. The car was parked at the Broadway Hotel and one of the occupants had gone inside for a cup of coffee. The police kept the car under surveillance and when the driver made a U turn in the middle of the highway he was stopped. Defendant was driving the car but had no record of ownership. He did have a Missouri driver's license but the stolen car had a Texas license plate on it. The occupants were requested to follow the police officers to the jail, and when defendant arrived his passenger was missing, having bailed out en route to the jail. Defendant told the officers the automobile was "hot."

Defendant had met Campbell in a Texarkana bus station and Campbell was en route to Fort Worth, but defendant claimed to be looking for a girl friend near Prescott and Campbell agreed to show him the way in return for defendant's thereafter taking Campbell to his destination in Fort Worth.

When defendant arrived at the jail without Campbell, the gasoline tank in the stolen car was virtually empty and defendant had no money. By 10:00 or 11:00 that morning, the officers had learned that the car had been stolen in Houston. In his statement defendant said that he had obtained the car from T. C. Gladwell, a salesman for Richardson Chevrolet Company in Houston, Texas. He claimed to have told Gladwell that he wanted to purchase an older model car and did not think he could afford this particular car but would try to arrange for the money. He was purportedly permitted to take the car on a trial basis and test drive it on the pretense of buying it. He said he told Gladwell that he wanted to take the automobile to his girl friend's home and would return it at approximately 8:00 o'clock the following morning, but did not tell him that he was going to take it to Arkansas. No evidence was offered by defendant or in his behalf at the trial, but at the time he made his statements to the arresting officers and the FBI agent as set out above he said that they would be verified through Gladwell, the aforementioned salesman for the Richardson Chevrolet Company in Houston.

Investigation reflected that the Richardson Chevrolet Company was located in the southwest edge of Houston, some twelve to fifteen miles from the parking garage from which the car was stolen. The State of Texas requires the licensing of all automobile salesmen and no one by the name of T. C. Gladwell was ever issued a license to sell automobiles in Texas. Furthermore, the Richardson Chevrolet Company checked its records back to 1960, and there was no T. C. Gladwell ever employed by the company during that period. Based on such undisputed evidence, the jury returned its verdict of conviction.

Testimony Relating to the Texarkana Correctional Institution.

It, of course, is improper and constitutes error to admit evidence of a crime unrelated in any particular to the one with which defendant was here charged. This is sound and elementary law for the defendant's protection, and under similar but distinguishable circumstances some courts have held that reversal was required.¹ The FBI agent, of course, should not have mentioned the institution. He was not a lawyer, but as an FBI agent he should have known better. His testimony in this regard was not responsive but was given in reply to the government attorney's query: "What statement, if any, did Mr. Christian make with reference to the possession of the motor vehicle?" The FBI agent then related in substance the entire statement, including the fact that defendant told him that he had been released from the Federal Correctional Institution at Texarkana, Texas.

This statement could have been prevented by defendant's attorney's suggesting prior to trial that no reference be made to that aspect of the statement, or counsel could have objected at the time the agent testified in this regard and his objection would certainly have been sustained and a cautionary instruction given which would have cured any possible error. See McBride v. United States, 409 F.2d 1046, 1048 (10th Cir. 1969); United States v. Phillips, 375 F.2d 75, 81 (7th Cir. 1967); United States v. Hall, 342 F.2d 849, 854 (4th Cir. 1965). We do not, however, fault defendant's attorney on either point because he suggests, and with logic, that any objection he might have made during the trial would have emphasized this portion of the statement and might well have been more harmful. This is so as it was a mere passing statement included in the overall fanciful version of defendant's explanation of his possession of the car. Counsel for defendant did at the conclusion of the government's case move for mistrial and directed verdict on both the grounds of insufficiency of the evidence and because of the reference made in testimony to the defendant's having been in the Federal Correctional Institution.

A similar situation arose in United States v. Dillinger, 341 F.2d 696 (4th Cir. 1965), where the FBI agent who arrested the defendant testified that defendant told him that his friend, Fry, whom defendant had met in the Atlanta Penitentiary, came to Dayton, Ohio, after which they began their journey which resulted in the prosecution for violation of the Dyer Act. It was urged by the defendant that this statement was reversible error, but the court said at pages 698-699:

"There was no objection at the time of the reference to the Atlanta Penitentiary, but appellate counsel now suggests that we ought to notice the court\'s disregard of it as plain error. We think not.

"The reference to the Atlanta penitentiary was of such a passing nature, and so apparently inadvertent, that it ought not to occasion the necessity of a new trial. Nothing else occurred in the trial to call attention to the reference or to highlight it in any way. It was the kind of thing that more than likely went unnoticed by the jury as it did by the court.

"It has frequently been held that a new trial was not required by similar statements by a witness so long as they appeared to have been incidental and inadvertent. Indeed, in Means v. United States, 62 App.D.C. 118, 65 F.2d 206, the Court dealt with almost the precise reference, the witness quoting the defendant as referring to a man whom he had met in the Atlanta penitentiary."

Fed.R.Crim.P. 52(a), 18 U.S.C., provides: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Also, 28 U.S.C. § 2111 states:

"On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not

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