United States v. Goad, 441-69

• Decision Date: 22 June 1970
• Docket Number: No. 441-69,442-69.,441-69
• Citation: 426 F.2d 86
• Parties: UNITED STATES of America, Appellee, v. Luther Jarold GOAD, Jr., Appellant. UNITED STATES of America, Appellee, v. Charles Vernon WAYMIRE, Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

426 F.2d 86 (1970)

UNITED STATES of America, Appellee, v. Luther Jarold GOAD, Jr., Appellant.

UNITED STATES of America, Appellee, v. Charles Vernon WAYMIRE, Appellant.

Nos. 441-69, 442-69.

United States Court of Appeals, Tenth Circuit.

May 18, 1970.

Rehearing Denied June 22, 1970.

Hubert H. Bryant, Tulsa, Okl. (Nathan G. Graham, U. S. Atty., and Robert T. Santee, Asst. U. S. Atty., Tulsa, Okl., on the brief), for appellee.

G. Douglas Fox, Tulsa, Okl., for appellant Goad.

Elmore A. Page, Tulsa, Okl., for appellant Waymire.

Before LEWIS and SETH, Circuit Judges, and BRATTON, District Judge.

Rehearing Denied in No. 442-69 June 22, 1970.

PER CURIAM.

The appellants Luther Jarold Goad, Jr., and Charles Vernon Waymire were convicted of having robbed the State National Bank of Depew, Depew, Oklahoma, in violation of 18 U.S.C.A. § 2113(b).

On appeal, Waymire argues that error was committed at trial by the court's failure to require disclosure of matters occurring before the grand jury and by its failure to grant a mistrial because of the admission of character evidence and evidence of the commission of another crime. He also challenges the admission into evidence of items he claims were seized as the result of an illegal search of appellant Goad's premises.

Appellant Goad joins in the challenge to the evidence seized in the search of his premises following his arrest, claiming alternatively that the search was incidental to an illegal arrest or that, if the arrest was legal, the search pursuant thereto exceeded permissible limits.

On September 20, 1968, state police authorities undertook to effect the arrests of Goad, Waymire, and a third man named Walton. At the time, the officers had been told by the F.B.I. that the three men were suspects in the Depew bank burglary and had been informed of their whereabouts through one officer's contact with an informer who had in the past given him reliable information. However, the warrants pursuant to which the officers were acting had been issued for violations of state laws.

The official state court records showed the case upon which the warrant for Goad's arrest was issued had been dismissed prior to his arrest. The Government introduced evidence that the dismissal was a clerical error, and the court below held that the warrant was still valid at the time of arrest notwithstanding what the official state record reflected.

Because it was not argued, and in view of the disposition made hereinafter of Goad's conviction, it is unnecessary to discuss the very serious question of whether an official state court record can be collaterally attacked in a federal court proceeding as was done in this case.

The officers had been informed that Goad and Waymire were both at the farmhouse, so, as they approached, one of the officers shouted for both men to come out.

Goad finally appeared in the kitchen doorway where he was placed under arrest and removed to a patrol car. The officers then proceeded into the kitchen and through the remainder of the house.

In the kitchen one officer saw a cloth bag containing silver and currency sitting on top of the refrigerator. In the hallway beyond the kitchen, where were also several guns, was seen a hole in the ceiling, through which was protruding a portion of a gun. Upon removing the gun through the hole, the police discovered a case containing another gun and a sack containing currency that was wet and slightly burned.

In a bedroom was observed an open suitcase containing burglary tools and, lying in a cap on top of a dresser, was seen still more currency.

All these items were introduced into evidence at trial.

Items of the sort that could be used to burglarize a bank safe were found outside the house on the grounds and in a shed and brought to the attention of the F.B.I. subsequent to September 20, 1968, by the man who had leased the farm property to graze cattle upon and who had sublet the farmhouse to Goad. Of these items, those that were found on grounds or in a building under the control of the lessee were admitted into evidence.

Readily disposed of is Waymire's contention that error was committed by the court's failure to require disclosure of matters occurring before the grand jury.

The trial judge overruled his motion for such production on the basis that the grand jury proceedings had not been transcribed, and, hence, there was nothing that could be ordered disclosed. Relying on Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), Waymire contends that the Government has a duty to record all grand jury proceedings and to make such minutes available to every defendant. Its failure to do so, he asserts, renders the indictment fatally defective.

The short answer to this contention is that Dennis imposes no such requirement upon the prosecution, and such is not the rule in this circuit. Pinelli v. United Statees, 403 F.2d 998 (10th Cir. 1968); Wyatt v. United States, 388 F.2d 395 (10th Cir. 1968); Thompson v. United States, 381 F.2d 664 (10th Cir. 1967); McCaffrey v. United States, 372 F.2d 482 (10th Cir. 1967), cert. denied 387 U.S. 945, 87 S.Ct. 2078, 18 L.Ed.2d 1332 (1967).

Waymire's second contention is equally lacking in merit. In essence, his argument is that the trial court should have granted a mistrial following either remarks relating to him during the officers' testimony regarding the events of September 20, 1968, or the testimony of a Government witness that Waymire and Goad had returned to Oklahoma from Kansas in Goad's car, in which he had observed burglary tools and an acetylene tank. The former testimony, he asserts, put his character in issue, despite the fact that he did not take the stand. The latter testimony he argues, is impermissible evidence of a crime other than the one for which he was on trial.

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