United States v. King

• Decision Date: 08 December 1969
• Docket Number: No. 18467-18469.,18467-18469.
• Citation: 415 F.2d 737
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Roland KING, Leonard John Clemons, Edna Frances Case, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

415 F.2d 737 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. James Roland KING, Leonard John Clemons, Edna Frances Case, Defendants-Appellants.

Nos. 18467-18469.

United States Court of Appeals Sixth Circuit.

August 6, 1969.

Certiorari Denied December 8, 1969.

W. E. Badgett, Knoxville, Tenn., for appellant James Roland King.

William R. Fain, Knoxville, Tenn., for appellant Leonard John Clemons.

Andrew J. Evans, Jr. (Court Appointed), Knoxville, Tenn., for appellant Edna Frances Case.

Edward E. Wilson, Knoxville, Tenn. (J. H. Reddy, U. S. Atty., Knoxville, Tenn., on the brief), for appellee.

Before PHILLIPS, EDWARDS, and McCREE, Circuit Judges.

Rehearing Granted in No. 18468.

Certiorari Denied December 8, 1969. See 90 S.Ct. 465.

McCREE, Circuit Judge.

These are appeals from judgments of conviction in a second trial¹ entered on a jury verdict finding appellants guilty of conspiracy to steal, utter and publish certain United States Treasury checks, and of the substantive offenses of stealing, uttering and publishing those checks, in violation of 18 U.S.C. §§ 371, 495 and 1708. The questions presented are whether the District Court's refusal to dismiss the jury panel because of a colloquy which took place in its presence between the judge and counsel for appellant King constitutes reversible error; whether certain handwriting specimens and expert testimony concerning them were properly received into evidence; whether testimony concerning the license plate number of a car allegedly used in the commission of one of the substantive offenses is admissible into evidence; and whether it is permissible for the District Court to sentence appellant King to a longer term of imprisonment than the court imposed after his first conviction on the same charges.

Initially, appellants contend that the members of the jury panel were prejudiced against them by the admonishment which the District Court delivered to appellant King for his belated appearance in the courtroom,² and by the judge's negation of King's attorney's claim that the court had promised not to reprimand his client for his tardiness in the presence of the panel.³ We regard the prejudicial effect of the admonition as minimal. The exchange which followed between the trial judge and King's attorney was regrettable, but nothing in the record enables us to determine whether the judge in fact made the promise attributed to him. Even if he did, however, any serious prejudicial effect which the colloquy might have had was cured by his prompt instructions to the panel.

THE COURT: Members of the jury, the Court did not say anything and did not intend to say anything that reflected upon the character or the honesty of Mr. Badgett King\'s attorney, and keep that in mind. These statements that were made while you were in here, Mr. Badgett came up to the Bar and said something to the Court and the Court replied, and the Court did not intend, and does not intend and will not intend, to reflect on Mr. Badgett in any manner or any of these other lawyers representing the defendants.

Therefore, we hold that the trial judge's refusal to dismiss the jury panel was, at most, harmless error beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), reh. denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967).

Secondly, appellants contend that the District Court erroneously denied their pretrial motion to suppress certain handwriting exemplars obtained from appellant Case. They claim that because the government failed to advise her of her constitutional rights before it asked her to make the specimens, suppression of this evidence is required by Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). The District Judge correctly held, however, that the taking of the exemplars violated none of appellant's constitutional rights under those cases. Gilbert v. California, 388 U.S. 263, 266, 87 S.Ct. 1951, 18 L. Ed.2d 1178 (1967). Furthermore, expert testimony concerning this evidence is clearly relevant and is similarly admissible.

The next question presented is whether testimony concerning the license plate number of a car allegedly used in connection with the uttering and publishing of one of the checks is of sufficient probative value to render it admissible. We hold that it is.

The clerk in the store in which the check was cashed wrote down the license plate number of the car used by the customer as "BC-2034". He was unable to recall the make of the car but remembered that it was a green four-door model. The number was apparently recorded incorrectly, however, because it was later traced to a blue, two-door Chevrolet. But the Government introduced evidence that appellant King's wife owned a green, four-door Chevrolet whose license plate number was "BC-3024" and that King had been seen driving the car himself. The jury could properly infer from this that the clerk actually saw Mrs. King's car and inadvertently transposed two of the numbers on the license plate.

Appellants' contention that the testimony of the store owner and two of his employees concerning the actions of the clerk when he wrote down the number constitute inadmissible hearsay is totally without merit.

Finally, appellant King challenges the propriety of the five-year concurrent sentences which he received from the District Judge after his second conviction. At his first trial on these charges, he was also convicted but was then sentenced to four-year concurrent terms.⁴

Since the District Court's consideration of this case, the Supreme Court has held that the...