United States v. Eaton

• Decision Date: 02 October 1973
• Docket Number: No. 73-1138 to 73-1140.,73-1138 to 73-1140.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Gene EATON et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

485 F.2d 102 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. William Gene EATON et al., Defendants-Appellants.

Nos. 73-1138 to 73-1140.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted August 13, 1973.

Decided October 2, 1973.

Rehearing Denied October 26, 1973.

COPYRIGHT MATERIAL OMITTED

Milton Keen, Oklahoma City, for defendants-appellants Eaton and Anderson.

Oyler & Smith, Oklahoma City, for defendant-appellant Fletcher.

William R. Burkett, U. S. Atty., Oklahoma City, for plaintiff-appellee.

Before LEWIS, BARNES,^* and McWILLIAMS, Circuit Judges.

Rehearing Denied in Nos. 73-1139, 73-1140 October 26, 1973.

BARNES, Circuit Judge:

This is a combined appeal by three individuals, two convicted of armed bank robbery (Anderson and Eaton — 18 U.S. C. § 2113(a) and (d)); and one of being an accessory after the fact (Fletcher — 18 U.S.C. § 3) by aiding or preventing apprehension of the other two appellants.

The facts need not be reported in detail, as no point is made of the insufficiency of the evidence, except as to appellant Fletcher. Viewing the evidence in a light most favorable to the government, as we must on this appeal, the evidence is clearly sufficient to convict two defendants, provided the various alleged evidentiary and procedural matters raised on this appeal are without merit.¹ We do find them without merit, and affirm the convictions of Anderson and Eaton, but reverse the conviction of Fletcher.

We discuss each issue raised below, after numbering them.

All defendants raise one issue in common: I., the alleged improper examination of witness Sherry (Sherri) Owings (alleged to have been Eaton's common law wife).

The defendants Anderson and Eaton each raise II., the incompetency as a witness of said Sherry Owings, and III., the error in denying a motion for severance.

Defendant Anderson raises, alone, IV., the court's denial of his counsel's motion for a continuance; and V., the court's denial of a motion for a mistrial when a witness for the prosecution, under cross-examination by counsel for Anderson, mentioned that Anderson was on parole.

Defendant Fletcher claims VI., the trial judge erred in denying him a bill of particulars, and VII., asserts the insufficiency of the evidence to sustain the verdict against him.

I. CROSS-EXAMINATION OF A HOSTILE WITNESS.

It is hornbook law that if a party's own witness (a) surprises him, by (b) testifying materially differently from a prior statement, which differing testimony (c) damages the calling party's case, then the calling party's counsel may cross-examine his hostile witness; ask the witness whether or not he made the prior inconsistent statement; and if so, if the witness desires to explain it. Such prior statements are admissible only to impeach or discredit the witness, and are not competent substantive evidence of the facts to which the former statements relate. Brooks v. United States, 309 F.2d 580 (10th Cir. 1962). But if on cross-examination the witness admits the former contradictory statements were made, no further proof is necessary. Ditrich v. United States, 243 F.2d 729 (10th Cir. 1957). Here there was no clear repudiation by the hostile witness Sherry Owings, of her prior statements made before trial. Bushaw v. United States, 353 F.2d 477 (9th Cir. 1965); Doss v. United States, 431 F.2d 601 (9th Cir. 1970).

After being called by the prosecution, Sherry Owings stated she did not desire to testify. Questions asked by the prosecution established that she was a hostile, evasive witness. The court remarked that ". . . It's obvious to everyone (she) is very hesitant and reluctant." (Tr. at 112), and "obviously hostile" (Tr. at 116). The court granted the prosecution permission, without objection, to treat her as a hostile witness, and lead her as on cross-examination (Tr. at 109).

We note that Mrs. Owings had not repudiated her statements made to the F. B.I. prior to trial. In testifying she continued to be evasive. But when asked if she had told the F.B.I. that articles had been thrown out of the auto in which she and Eaton (with Anderson and his wife) had been riding (after discovering the F.B.I. had been making inquiries at a night club with respect to Eaton and Anderson, in the early morning hours of the day after the armed robbery), she testified:

"A I might have (said that) then; I don\'t remember saying that.

"Q And you don\'t remember now what might have been thrown out of the car?

"A I saw something being thrown out of the car, but I don\'t know what it was."

She was evasive about having seen shot-guns being transferred from one car to another (Tr. 116-117) and whether she talked to Fletcher on the phone the next day. In fact, in at least three instances she originally "failed to remember", but subsequently confirmed the fact she had talked to F.B.I. agents with respect to the subject matter of the questions originally asked her. Cf. United States v. Barrow (D.C.Pa.1964), 229 F.Supp. 722, aff'd. 363 F.2d 62, cert. denied 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541.

The ruling by the court that she was a hostile witness was completely justified.

II. THE ALLEGED INCOMPETENCY OF THE WITNESS OWINGS.

Sherry Owings' testimony was objected to by Eaton upon the ground that she was his common law wife. The trial judge excused the jury, heard arguments, and ruled that she was not the common law wife of Eaton.

This witness first met Eaton in June, 1972. The bank robbery occurred October 5, 1972. Prior to meeting Eaton, the witness had been married to Clarence Owings, and was divorced by him in Portland, Oregon on March 12, 1972. She married another man on June 7, 1972, and had that marriage assertedly annulled on June 30, 1972.

While the Oklahoma statutes apparently require a formal ceremony to contract a marriage (43 Okl.Stat.Ann. § 7 (1961)), case law in that state indicates there must be "direct evidence of a contract" between the parties "sufficient to give rise to a marital relation." (Emphasis added.) Rainey v. Thomas, 203 Okl. 401, 222 P.2d 510 (1950). In that case the Supreme Court said: ". . . the only indirect evidence thereof is admissions of deceased and acts of cohabitation. . . . The cohabitation relied on was irregular and for a limited period of time and does not afford cogent evidence of the contract and is entirely insufficient to give rise to a presumption of the existence of a marital status. Richard v. Richard, 172 Okl. 397, 45 P.2d 101."

Here, the period of time was certainly limited.² The witness testified Eaton had introduced her to his mother as his wife; and to friends (including Anderson) as "his old lady". She and Eaton registered at motels as husband and wife. Defendant Eaton and Mrs. Owings allegedly "planned to be married in the future," but "didn't talk about it."

"A common law marriage is contractual and must be founded upon a mutual consent between the parties . . . We can only conclude from the evidence presented in the present case that the deceased and the plaintiff intended and planned to marry at some future date. However, the mere contemplation of marriage does not establish a common law marriage. A common law marriage is based on a present assumption of an existing relationship, not upon what the parties intended or have agreed to do at a future time." In re Est. of Hornback, 475 P.2d 184 (Okl.1970).

"The burden is upon the person relying upon a common law marriage to establish the same. The judgment of a trial court against the claim of the consummation of a common-law marriage will not be reversed where it appears that the evidence does not preponderate in favor of such claim." Jackson v. Jackson, 182 Okl. 74, 76, 76 P.2d 1062, 1063 (1938).

This well established rule is peculiarly apposite because the trial judge has the advantage over appellate judges in observing the conduct and demeanor of the witness; in considering his or her evident disinclination to be an honest witness; or apparent bias, and prejudice. "Good faith, while not controlling, is always one of the principal elements to be considered." Burdine v. Burdine, 206 Okl. 170, 242 P.2d 148 at 150 (1952).

It was likewise the proper role of the trial judge to consider that Sherry Owings never held herself out as Sherry Eaton; that she testified she and Eaton "didn't really talk about `their relationship,' . . . it was just natural, we were together and I was his old lady and that was it" — that they were going to have to make it legal; and that "they planned to get married later for the children." (Emphasis added.)

The trial court, as finder of the facts under the above quoted law, was justified in finding that defendant Eaton had not sustained the defendant's burden of proving a common law marriage, or any other marriage between himself and Sherry Owings. And it is doubtful if Anderson has standing to ever raise the question. See 8 Wigmore, § 2228 (1961 Ed.).

III. THE MOTIONS OF EATON AND ANDERSON TO SEVER.

The granting or refusal of such a motion lies within the sound discretion of the trial court. It is error only when that discretion has been abused. United States v. Rodgers, 419 F.2d 1315, 1317-1318 (10th Cir. 1969), and cases cited therein.

Here, the motion for severance was made prior to the trial. There was no reason for it then. The two complaining defendants were indicted on facts arising out of one armed bank robbery occurring on October 5, 1972, in which each of the two allegedly participated.

Eaton maintains he was prejudiced when a government witness referred to Anderson as being "on parole". (Tr. Vol. III, at 156). Anderson maintains he was prejudiced when government witness proved that Eaton bought a car with a portion of the stolen money. Anderson was prejudiced only as he would be if any testimony hurt his case, and Anderson's claim of error is entirely without merit.

Eaton's claim has slightly more basis, but was not prejudicial within Rule 14, Fed.R.Cr.Proc. The...