United States v. Evans

• Decision Date: 14 March 1986
• Docket Number: Crim. No. N-85-36 (PCD).
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Linda Sue EVANS.

629 F. Supp. 1544

UNITED STATES of America v. Linda Sue EVANS.

Crim. No. N-85-36 (PCD).

United States District Court, D. Connecticut.

March 14, 1986.

COPYRIGHT MATERIAL OMITTED

Diane Polan, New Haven, Conn., for plaintiff.

Peter Clark, Asst. U.S. Atty., New Haven, Conn., for defendant.

RULING ON MOTION TO PERMIT OPENING STATEMENT

DORSEY, District Judge.

An opening statement is a matter for the discretion of the court, Local Rule 12(e), and is not a constitutional right. United States v. Salovitz, 701 F.2d 17, 20 (2d Cir.1983); Herring v. New York, 422 U.S. 853, 863, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). The exercise of that discretion must be guided by the purpose of a trial: to permit a defendant a fair opportunity to present his case. If a defendant intends to call no witnesses, there is nothing to explain in advance and an argument at the conclusion of the case suffices to permit a defendant to place his views of the case before the jury. When the defendant intends to testify, that moment, on the stand, under oath, and subject to cross-examination, is an adequate opportunity for the defendant to get across to the jury his version of the facts. When a defendant intends to call witnesses, they lend additional support to the defendant's assertions.

Nevertheless, defendant argues that an opening statement serves three essential purposes: (a) to state what evidence will be presented; (b) to make it easier for the jurors to understand what is to follow; and (c) to relate parts of the evidence and testimony to the whole. Defendant's Memorandum in Support of Motion to Permit Defendant to Make an Opening Statement at 1, citing United States v. Dinitz, 424 U.S. 600, 612, 96 S.Ct. 1075, 1082, 47 L.Ed.2d 267 (1976) (Burger, C.J., concurring). See also United States v. Escobedo, 430 F.2d 14, 20 (7th Cir.1970), cert. denied, 402 U.S. 451, 91 S.Ct. 1632, 29 L.Ed.2d 122 (1971).

(a) It is not quite accurate to say that an opening statement explains what evidence will be presented. Although a criminal defendant benefits from liberal discovery and knows much, if not all, of the government's evidence in advance of trial, surely the defendant's opening statement is not going to outline the evidence against her. There is no comparable advance notice of what the defendant will offer, if anything. Thus, there is no ready circumscribing of what a defendant will offer, or be permitted to present to the jury in a statement. Though a corrective instruction could remove a claim made in opening that was not substantiated by the evidence, it may not offset the unfair advantage in a preliminary casting of the case for the jury. Moreover, if a claim in opening is not the subject of evidence, that may place in question the good faith of the defendant who makes such a claim. See United States v. Dinitz, 424 U.S. at 612, 96 S.Ct. at 1082; United States v. Salovitz, 701 F.2d at 20 (discussing rationales for allowing or disallowing opening statement). If the court concludes the claim was knowingly and intentionally made, it will have to grapple with the problem of determing what penalty, if any, is appropriate and feasible.

(b) It is questionable whether a mere recitation of the evidence which is to follow will help the jurors better understand the evidence when it is introduced. Yet, if the opening statement goes beyond a mere recitation, the explanation may shade into becoming an argument. Dinitz, 424 U.S. at 612, 96 S.Ct. at 1082.

(c) To relate parts of the evidence and testimony to the whole requires commentary. Counsel may comment on relative weight of evidence, resolution of conflicts, harmonization of evidence in the face of apparent conflict, etc. It is an analysis which approximates argument and that, as previously mentioned, is not the function of an opening statement.

On balance, preclusion of opening statements seems the better rule. Any advantage claimed to accrue to the government by the reading or paraphrasing of the indictment is countered by a recitation of defendant's denial, buttressed by instructions as to the government's burden of proof, defendant's entitlement to a presumption of innocence and the want of any obligation on defendant's part to offer evidence or prove her innocence. In most cases, the defendant's alleged need to make an opening statement for the full exercise of his constitutional rights is overshadowed by the potential for abuse and by the numerous trial problems and appeals which may result therefrom.

Courts that have not generally allowed opening statements have regarded them as "a privilege to be granted or withheld depending on the circumstances of the individual case." Salovitz, 701 F.2d at 20. Thus, when the evidence is complex and there is a significant risk of confusion or misunderstanding, an opening statement may be warranted in fairness to a defendant. McLauth v. California, 402 U.S. 183, 221, 91 S.Ct. 1454, 1474, 28 L.Ed.2d 711 (1971).

Defendant asserts this to be the kind of complicated case which warrants an opening statement. She notes the potential of 150 exhibits, scores of witnesses, covering a wide span of time. However, extensive testimony and numerous exhibits do not necessarily mean that the jury will be confused unless an opening statement is made. As against the government's claims and proof, the defendant purportedly will attempt to explain away the evidence by showing that her intent, and the motive and purpose for her conduct, was neither fraudulent nor criminal. The defense theory, and the means of attempting to convince the jury of its efficacy, is not novel or unduly complex. In view of her motion, the court will advise the jury that, as opposed to the intent with which she is charged, defendant claims there was an innocent intent and motive which accounts for her behavior. The court will also consider other proposals from the defense as to how the case should be introduced to the jury. Such a procedure will adequately assure defendant of fair consideration by the jury.

Accordingly, defendant's motion for permission to make an opening statement is denied.

SO ORDERED.

RULING ON MOTION TO SUPPRESS

I. New York

Defendant's motion in part applies to items seized in Apartment 12L at 3451 Giles Place, Bronx, New York. That apartment has not been shown to have had any substantial link to defendant. She was in the apartment but once insofar as the record shows, she had a key to the building, her fingerprints were found there. The latter may have been created at the time of the single visit, immediately prior to her arrest and the search of the apartment. Certainly defendant is not likely to claim that they were made at any other time lest she thereby concede probative value to that evidence on an ultimate issue.

To establish standing, it must be shown that defendant had "a legitimate expectation of privacy" in the locus searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). Certainly the possession of a key is indicative of more than a mere fleeting relation to the apartment, but it is not controlling. Defendant could have taken possession on that one occasion when she was found there. The key suggests at least an immediate right to access, but does not necessarily suggest the power of access over a protracted period of time, as here it was shown to have been used only once. It manifests no particular authority to exclude, because there is no suggestion that the key proven was the only key. Paired with the fact that the apartment was rented in the name of another, it merely demonstrates the acquiescence of whomever was the renter in defendant's possession of the key. While the key establishes a relationship between Evans and the apartment, it is but one factor in assessing an expectation of privacy there on her part.

The fact that women's clothing was found in the apartment is of little weight. Marilyn Jean Buck was also in the apartment when defendant was there and the clothing could equally have belonged to Buck.

Defendant was not the named lessee of the property and thus she had no legal possessory interest in either the apartment or its contents. There is no other evidence of the use of the apartment and it would, therefore, be speculative that she had an exclusive right of use. There is no evidence that she made any extended use of it. To the contrary, the evidence is that she had been living in Baltimore for a considerable period of time immediately prior to the single use of the New York apartment. There is evidence of a Connecticut residence for a protracted period of time prior to the Baltimore residence. It is less than likely that defendant, even had she lived a nomadic life, would have retained such a relationship as is required by Rakas to more than one apartment. There is no evidence that it was a residence for defendant at the time of the search. Indeed, in support of her motion to suppress, dated February 5, 1986 at 8, defendant forcefully so argues, making no claim of residency. Her single entry on one occasion when she stayed only for a short time, changed her clothes and continued on her journey, is the only evidence of her use of the apartment. The fact that when she left the apartment she went a relatively short distance and stayed over night at a hotel strongly suggests the lack of a relationship to the apartment, which would give her standing to challenge the search thereof.

On the record, it cannot be found that defendant had any reasonable basis for an expectation of privacy in the Giles Place apartment, a claim as to which she has the burden of proof. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). Accordingly, for the lack of standing, defendant's motion to suppress any material taken from the Giles Place apartment is denied.

II. Baltimore

An agent involved in the government's investigation testified that defendant was the lessee of and lived in the...