United States v. Moton, 73-2456 Summary Calendar.

• Decision Date: 26 April 1974
• Docket Number: No. 73-2456 Summary Calendar.,73-2456 Summary Calendar.
• Citation: 493 F.2d 30
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Webster MOTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

493 F.2d 30 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Richard Webster MOTON, Defendant-Appellant.

No. 73-2456 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

April 26, 1974.

Harry B. Adams, III, San Antonio, Tex. (Court-appointed), for White.

Walter F. Rudeloff, San Antonio, Tex. (Court-appointed) for Williams.

James R. Gillespie, San Antonio, Tex. (Court-appointed) for Moton.

William S. Sessions, U. S. Atty., Wayne F. Speck, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before GEWIN, GODBOLD and CLARK, Circuit Judges.

PER CURIAM:

Defendant Moton was charged in a two count indictment with conspiracy to maliciously firebomb government property, under 18 U.S.C. § 371 (1970), and with the substantive offense under 18 U.S.C. § 844(f) (Supp.1973). At the close of the Government's case, the court sua sponte dismissed as defective the count charging him with the substantive offense. The jury found him guilty on the conspiracy charge. On appeal, he claims that two infirmities inhered in his jury trial. We affirm.

Moon's first contention is that the trial court denied him effective assistance of counsel guaranteed by the Sixth Amendment when it instructed defense counsel to cross-examine Willard English, Jr., a Government witness, in a certain fashion. The following colloquy illustrates the substance of Moton's grievance:

"THE COURT: Counsel, I think it would help if you would take this matter chronologically and develop it, it would help you, and would help the witness, it would help the Court understand the facts, the interrogation, but you are jumping from one matter to another without identification as to time and place, it is out of context, so to speak, so, I am going to ask you to try to establish your timing on each question, and place, and then possibly — and arrange it, if possible, in a chronological sequence, and if it is inconsistent, why, then, you can bring it out by subsequent questions as to whether previously the witness has testified to a different time and place.

MR. IDAR: Your Honor, I will do the best I can to be fair with the witness. It is my position that if the witness has rehearsed a story —

THE COURT: Now, counsel, I don\'t want any comments about — any argument to me or to the jury about a witness rehearsing a story. Now, you ask your questions and get your answers. The jury will hear you in argument later on as to whether that amounts to a rehearsing of the story or not, but those are sidebar remarks that I do not permit counsel on either side to make. That is comments on your questions and the answers in the course of your questioning, and that can come later, those arguments, but right now confine yourself to questions and answers as to the facts and avoid any sidebar remarks for whoever\'s benefit they may be.

MR. IDAR: All right, Your Honor, let the record reflect my exception.

THE COURT: Yes, I understand your objection to it and it is overruled. Now, go ahead, do as I direct, please."

Upon review of the record, we are convinced that the trial court's attempts to insure that evidence would be elicited in an orderly and intelligible manner did not so shackle defense counsel as to deny Moton effective assistance of counsel.

Moton's second contention is that the trial court committed prejudicial error when it permitted the Government, over defense counsel's objection, to introduce a photograph of a child who was burned by the explosive device allegedly employed by Moton and his confederates. Since it was uncontroverted that the child had sustained bodily injuries, Moton claims that introduction of the photograph was intended solely to inflame the jury and hence jeopardized his right to a fair and impartial trial.

That the photograph was relevant to the substantive offense with which Moton was charged is manifest from an examination of the punishment authorized by 18 U.S.C. § 844(f) (Supp.1973). Where bodily harm is inflicted as a result of the malicious destruction of government property by means of an explosive, section 844(f) countenances an enhancement of the maximum term of imprisonment from 10 to 20 years and of the maximum fine from $10,000 to $20,000. With the dismissal of count...