United States v. Follette, 439
| Decision Date | 14 July 1966 |
| Docket Number | No. 439,Docket 30166.,439 |
| Citation | 364 F.2d 305 |
| Parties | UNITED STATES of America ex rel. William Lee EVANS, Petitioner-Appellant, v. Harold W. FOLLETTE (successor to Edward M. Fay), as Warden of Green Haven Prison, Stormville, New York, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Anthony L. Fletcher, New York City (Anthony F. Marra, New York City, on the brief), for appellant.
Barry Mahoney, Asst. Atty. Gen. of the State of New York (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Albert O. Marston, Asst. Atty. Gen., on the brief), for appellee.
Before HAYS, ANDERSON and FEINBERG, Circuit Judges.
After a consolidated trial of complaints made by three different persons involving acts committed at different times, appellant Evans was convicted, in the former Court of General Sessions of New York County, of two counts of robbery, two counts of sodomy, three counts of assault with intent to commit sodomy and two counts of assault with intent to commit robbery. Appellant now claims that his detention is unconstitutional because the due process clause of the Fourteenth Amendment requires separate trials in cases where the crimes charged were of such a sordid nature that allowing the jury to hear evidence as to all acts might prejudice them when considering the specific complaint of each victim.
Section 279 of the New York Code of Criminal Procedure allows for the consolidation of charges of the "same or a similar character," at the discretion of the trial judge. Compare Rule 8(a) of the Federal Rules of Criminal Procedure. The trial judge charged the jury:
* * *"
We must assume that the jury followed these instructions. See Delli Paoli v. United States, 352 U.S. 232, 242, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957); Opper v. United States, 348 U.S. 84, 94-95, 75 S.Ct. 158, 99 L.Ed. 101 (1954).
At most we are presented with an abuse of discretion by a state trial judge in granting the motion for consolidation. Compare United States v. Lotsch, 102 F.2d 35 (2d Cir.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L. Ed. 1500 (1939) with Note, Joint and Single Trials Under Rules 8 and 14 of the Federal Rules of Criminal Procedure, 74 Yale L.J. 553, 556-60 ...
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Hicks v. Bellnier
...not the joinder itself, which may render the trial ‘fundamentally unfair.’ ” Herring, 11 F.3d at 377 (citing United States ex rel. Evans v. Follette, 364 F.2d 305, 306 (2d Cir.1966), cert. denied, 385 U.S. 1016, 87 S.Ct. 733, 17 L.Ed.2d 552 (1967) (per curiam )). While the Circuit has consi......
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Hernandez v. Conway
...control, and not the joinder itself, which may render the trial `fundamentally unfair.'" Id. (citing United States ex rel. Evans v. Follette, 364 F.2d 305, 306 (2d Cir.1966) (per curiam) (holding that decision to consolidate charges for trial does not, in and of itself, raise an issue of co......
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Jackson v. Lacy
...law regarding the trial judge's exercise of discretion and is not appropriately raised in a § 2254 petition. United States ex rel. Evans v. Follette, 364 F.2d 305, 306 (2d Cir.1966). 3. Page citations are to the transcript of Petitioner's trial on October 19 - October 22, 4. In any event, t......
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Forbes v. Ricci
...from the events as they unfolded during the joint trial"); see also Laws v. Yeager, 448 F.2d 74, 82 (3d Cir. 1971); Evans v. Follette, 364 F.2d 305 (2d Cir. 1966). Therefore, Petitioner's Ground One is subject to dismissal as facially meritless and, hence, subject to sua sponte dismissal or......