United States v. Lipscomb

• Decision Date: 21 April 1970
• Docket Number: No. 19787.,19787.
• Citation: 425 F.2d 226
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Claude Lewis LIPSCOMB, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

425 F.2d 226 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Claude Lewis LIPSCOMB, Defendant-Appellant.

No. 19787.

United States Court of Appeals, Sixth Circuit.

April 21, 1970.

Hamilton Gayden, Jr. (Court appointed), Nashville, Tenn., for defendant-appellant.

Ira E. Parker, III, Asst. U. S. Atty., Nashville, Tenn., for plaintiff-appellee; Charles H. Anderson, U. S. Atty., Nashville, Tenn., on brief.

Before WEICK and COMBS, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

COMBS, Circuit Judge.

Defendant-appellant was convicted by a jury of interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. § 2312, and was sentenced to two years imprisonment. The two questions raised on appeal involve (1) the introduction of testimony by the government to impeach one of its witnesses, and (2) the sufficiency of the evidence to sustain the conviction.

A 1967 Pontiac GTO was stolen in Huntsville, Alabama in September, 1968. Defendant was first connected with the stolen vehicle by Officer Summers of the Nashville Police Department who testified that, in November, 1968, he gave chase to an automobile in Nashville in connection with a traffic violation; that, when the automobile was finally stopped, four occupants, including defendant, jumped from the car and fled on foot; and that defendant alighted from the driver's side of the car and was the only occupant apprehended. Subsequent investigation revealed that this automobile was the one previously stolen in Huntsville.

Government witness James Scruggs testified on direct examination that he had seen the defendant driving a 1967 Pontiac GTO in Huntsville in September, 1968. However, Scruggs denied that he had ridden with defendant from Huntsville to Nashville in the stolen car or that defendant had admitted to him that he stole the car.

Following cross-examination of Scruggs by defense counsel, the government claimed surprise and had Scruggs declared a hostile witness. After laying the proper foundation, the government called FBI Agent Marx who testified that Scruggs had previously stated to him that he had ridden from Huntsville to Nashville with defendant and that defendant had admitted to Scruggs that he had stolen the car. FBI Agent Norwood corroborated the testimony of Agent Marx.

Defense counsel's objection to the admission of Agent Marx's testimony as hearsay was overruled on the ground the evidence was "competent for the purposes of rebuttal." No specific cautionary instruction was requested or given. In the charge to the jury, the trial court did instruct that a witness could be impeached either by establishing testimonial contradictions through cross-examination or by showing that the witness had testified in a manner inconsistent with statements previously made by him. The jury was further instructed that, if they found that any witness had been impeached by either of these two methods, it was within their discretion to disregard his testimony.

The prior inconsistent statements of the witness Scruggs were admissible as affecting his credibility, but not as substantive evidence. United States v. Crowder, 346 F.2d 1 (6th Cir. 1965); Green...