United States v. Miller, 73-1931.

• Decision Date: 17 June 1974
• Docket Number: No. 73-1931.,73-1931.
• Citation: 499 F.2d 736
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles L. MILLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

499 F.2d 736 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Charles L. MILLER, Defendant-Appellant.

No. 73-1931.

United States Court of Appeals, Tenth Circuit.

June 17, 1974.

COPYRIGHT MATERIAL OMITTED

Richard Meyer, Asst. U. S. Atty (Robert J. Roth, U. S. Atty., Bruce E. Miller, and E. Edward Johnson, Asst. U. S. Attys., on the brief), for plaintiff-appellee.

Ernest C. Ballweg, Prairie Village, Kan., for defendant-appellant.

Before HILL, SETH and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This is an appeal from a conviction for assault with intent to commit murder, in violation of 18 U.S.C. § 113(a).

Appellant Charles L. Miller and his co-defendant, Curtis Allen Kochis, were indicted by a federal grand jury and charged with assaulting a fellow inmate in the federal penitentiary at Leavenworth with the use of a dangerous weapon, i. e. an incendiary device. Both appellant and his co-defendant Kochis pleaded not guilty to the charge. Following an Omnibus Hearing on February 8, 1973, they were tried by a jury in the United States District Court for the District of Kansas. Appellant was found guilty. Kochis was found not guilty. Appellant was sentenced to a maximum of ten years to be served consecutively to any other sentence which he was serving.

The government's evidence showed that the victim of the attempted murder, one Johnny Bourgeois, was set on fire while asleep in his prison cell at Leavenworth. Bourgeois testified that he woke up on fire. His bunk bed and body were in flames and he jumped out of bed so that his cellmate could put out the fire. As he jumped out of the bed, two nearby containers which looked like "Tang" jars and which apparently contained a flammable liquid immediately spilled, causing the fire to spread throughout the cell. Bourgeois testified that when the door of his cell was opened, he saw appellant Miller running away from the cell.

Bourgeois' cellmate, one Daniel Enoch, testified that, on the morning of the fire, he was awakened by Bourgeois' screams and that he jumped out of bed, knocked the cell door open and pulled the burning victim into the hallway to beat out the flames. Enoch further testified that the cell door appeared to have been tied and that, as he struggled to open it, he saw appellant Miller squatting down, holding the door.

Frederick Thomasser, also an inmate, testified that appellant had asked him to get some liquid paint thinner from the prison machine shop, where Thomasser worked. Thomasser obtained the solvent, put it in a glass "Tang" jar and gave it to another inmate, one Lester Meddy. Meddy testified that on the morning of August 16, 1972, appellant asked him to go to the machine shop and pick up a jar of "liquid" from Thomasser. Meddy did so and subsequently gave the liquid to appellant at about 8:30 A.M. on August 16, less than an hour before the fire.

Another government witness, inmate Burl Gene Maret, testified that immediately before the fire, he saw appellant and another inmate approach the victim's cell, throw something inside it, light a torch-like object and throw it afterwards inside the cell. Maret also testified that, on the night before the fire incident, he had had a conversation with appellant in which appellant related that he and Johnny Bourgeois had been in an argument and that appellant wanted Maret to give him a knife. Maret testified that he did not give appellant a knife.

Other government witnesses, correctional officers at Leavenworth, testified that on the morning of the fire, appellant had been found "fooling" around with a control lever device which locked certain cell doors, including that of the victim, Johnny Bourgeois, and that after the fire, pieces of charred glass from a container were found inside the burned-out cell.

The defense was that of alibi. A fellow inmate testified positively that he saw appellant in the prison mess hall about 15 seconds after the fire broke out and that he waved and yelled at appellant at that time.

Another inmate testified that he saw two men, who were either Mexican or black, running from the direction of the burning cell; that he had never seen these men before and that neither of these men was appellant Miller.

Appellant denied any involvement in the fire and also denied that he had requested either paint thinner from Thomasser or a knife from Maret.

Thus, the salient facts of the case were in dispute so that the result was based on the credibility of the witnesses.

In seeking a reversal appellant's reliance is on the following:

1. Alleged error of the trial court in taking judicial notice of the fact that the penitentiary at Leavenworth is under the jurisdiction of the United States Government.

2. The alleged error resulting from the district attorney asking a witness on cross-examination whether he was a member of the "Church of the New Song."

3. The alleged error of the trial court in not striking the testimony of a government witness, an inmate of the penitentiary named Maret, who appellant claimed was an informer; inasmuch as the government failed to identify him as an informer, appellant claims that he is entitled to have this sanction imposed.

4. The alleged error of the trial court in denying appellant's motion for a mistrial based on allowing the government witnesses to be kept together during the trial.

5. The failure of the government to make a pretrial disclosure of photographs depicting the scene and circumstances of the alleged offense. It is said that this violates the Omnibus Hearing order.

I. Judicial Notice of United States Jurisdiction

We perceive no error in the trial court's taking judicial notice of the fact that the United States Penitentiary at Leavenworth is within the special territorial jurisdiction of the United States. The thrust of appellant's objection to this is that the trial court did it on its own motion.

The assault and the fire unquestionably occurred inside the walls of the penitentiary, and where this is true the court may properly take judicial notice. See United States v. Floyd, 477 F.2d 217 (10th Cir. 1973); United States v. Carter, 430 F.2d 1278 (10th Cir. 1970); Hall v. United States, 404 F.2d 1367 (10th Cir. 1969); Markham v. United States, 215 F.2d 56 (4th Cir. 1954).

In Hayes v. United States, 367 F.2d 216 (10th Cir. 1966), we considered a similar case involving the prosecution of a prisoner at Leavenworth for murder of a fellow inmate. In determining whether the United States had exclusive jurisdiction over the Leavenworth penitentiary, we traced the history of the property on which the penal facility is presently located and found that a 1927 statute passed by the Kansas Legislature ceded to the United States exclusive jurisdiction over the land and institution at Leavenworth. This statutory enactment renders judicial notice of jurisdiction appropriate in the case at bar, even though such notice was taken upon the court's own motion.¹

II. Cross-Examination of Defense Witness On Inflammatory Subject

Appellant's next point that there was prejudice in the cross-examination of the defense witness as to his being a member of the "Church of the New Song" is also insubstantial. It is a contention which rests on the fact that Leavenworth and other penitentiaries have had riots which had been reputedly incited and precipitated by a group known as the "Church of the New Song." It is argued that the jurors were probably aware of the connotations arising from the name of this organization and that this created prejudice.

But the trial court sustained an objection to the form of the offensive question. This was followed by proceedings outside the hearing of the jury immediately following which the court admonished the jury a) to disregard all mention of the "Church of the New Song" and b) to withdraw from their consideration both the question posed and the response elicited. The court repeated this instruction at the conclusion of the evidence.

In view of the fact that the objectionable conduct of the district attorney was neither persistent nor prolonged, and in light of the protective measures followed by the trial court to disregard any evidence concerning the "Church of the New Song," we conclude that the judge's admonition was sufficient. The trial court was in a position to evaluate the effect of the question in the minds of the jury and to determine whether an admonition would effectively cure the problem. See United States v. Goodwin, 455 F.2d 710 (10th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 146, 34 L.Ed.2d 105 (1972); Rogers v. United States, 411 F.2d 228 (10th Cir. 1969); Walton v. United States, 334 F.2d 343 (10th Cir. 1964).

III. Failure to Strike the Testimony of an "Informer"

Unquestionably the government took the position that there was no informer in the case. This is evidenced by the Omnibus Order which was signed on February 8, 1972. There was a further hearing in court which was precipitated by the appellant's request of the court to review the statements of all government witnesses so as to ascertain whether the government was relying on information supplied by informers and, if so, to direct the disclosure of their identities. A hearing was held on appellant's motion on February 26, 1973, and at that time the government reasserted its position that there were no informers and the court subsequently denied appellant's request.

Then, at the trial, during the defense counsel's cross-examination of the witness Maret, the following colloquy occurred:

Q: Mr. Maret, when were you first contacted by F.B.I. or prison officials with regard to this occurrence?

A: I contacted them.

Q: You went to them?

A: Yes.

Q: What did you advise them?

A: I advised them that I'd like to speak to Mr. Sharp.

Q: This gentleman here?

A: Yes sir.

Q: Now, was it at this time that you offered this story to him?

A: At that time I told him what I saw.

Q: And this was done of your own volition? You...