United States v. Frankenberry
Decision Date | 18 December 1967 |
Docket Number | No. 218,Docket 31768.,218 |
Citation | 387 F.2d 337 |
Parties | UNITED STATES of America, Appellee, v. James Robert FRANKENBERRY, Jr., Appellant. |
Court | U.S. Court of Appeals — Second Circuit |
Elkan Abramowitz, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., for Southern Dist. of New York, and Otto G. Obermaier, Asst. U. S. Atty., New York City, on the brief), for appellee.
H. Elliot Wales, New York City, for appellant.
Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.
James Robert Frankenberry, Jr., was convicted by a jury in the Southern District of New York of escaping from federal custody while confined to an institution by virtue of a conviction for an offense against the United States. 18 U.S.C. § 751.
On April 12, 1967 Frankenberry had been sentenced pursuant to 18 U.S.C. § 5010(b) to up to six years treatment and supervision as a youth offender pursuant to 18 U.S.C. Ch. 402. After a period of confinement in the Federal Correctional Institute at Petersburg, Virginia, he was transferred on January 10, 1967 to the Springfield College Guidance Center in New York City. The Guidance Center is a pre-release center where inmates are allowed to leave the building provided they have permission of their guidance counsellor. However, all inmates are required to return before the 10 o'clock evening curfew. On February 2, 1967 Frankenberry left the Center and failed to return.1
At trial, appellant's counsel attempted to show that another inmate had threatened Frankenberry more than six days prior to the date of his departure. The evidence was excluded despite counsel's contention that it was relevant to the question of appellant's intent. But the offer of proof did not contain any evidence that Frankenberry intended to return to the Center or that he was under duress or in immediate danger of physical harm at the time that he fled, six days after the last incident in the offer of proof. We find that the trial judge properly excluded the evidence as irrelevant. A possible reason for the appellant's desire to flee can hardly be evidence that the appellant lacked the intent to flee.
Secondly, appellant claims that the prosecutor's summation was improper because it referred to defendant's bad character, although the defendant's character was not in issue. The prosecutor said:
* * *"
At this point appellant's counsel interrupted with an objection, which the judge sustained and, after denying counsel's motion for a mistrial, he immediately instructed the jury that
In view of the judge's prompt action and instruction, and since the jury already knew from the facts of the case that defendant had escaped while serving a sentence for transportation of a stolen automobile in interstate commerce, we do not think that reference to the court's consideration of circumstances in the defendant's background was prejudicial error. United States v. Murphy, 374 F.2d 651 (2 Cir.), cert. denied, 389 U.S. 836, 88 S.Ct. 47, 19 L. Ed.2d 98 (1967); United States v. Caruso, 358 F.2d 184, 186 (2 Cir.), cert. denied, 385 U.S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88 (1966); United States v. DeAlesandro, 361 F.2d 694, 697 (2...
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United States v. Edwards 8212 88
...34 (CA3 1969); Ray v. United States, 412 F.2d 1052 (CA9 1969); Westover v. United States, 394 F.2d 164 (CA9 1968); United States v. Frankenberry, 387 F.2d 337 (CA2 1967); Evalt v. United States, 382 F.2d 424 (CA9 1967); Malone v. Crouse, 380 F.2d 741 (CA10 1967); Cotton v. United States, 37......
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...Concerning the propriety of the search, appellant properly recognizes the ominous relevance of such cases as United States v. Frankenberry, 387 F.2d 337 (2d Cir. 1967); Malone v. Crouse, 380 F.2d 741 (10th Cir. 1967), cert. denied, 390 U.S. 968, 88 S.Ct. 1082, 19 L.Ed.2d 1174 (1968); Cotton......
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