United States v. Parhms

• Decision Date: 06 April 1970
• Docket Number: No. 24182.,24182.
• Citation: 424 F.2d 152
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Charles PARHMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

424 F.2d 152 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Charles PARHMS, Defendant-Appellant.

No. 24182.

United States Court of Appeals, Ninth Circuit.

April 6, 1970.

Michael Hoff (argued), Seattle, Wash., for defendant-appellant.

William Rubridge (argued), Asst. U. S. Atty., John M. Darrah, Asst. U. S. Atty., Stan Pitkin, U. S. Atty., Seattle, Wash., for plaintiff-appellee.

Before MADDEN,^* Judge of the United States Court of Claims, and CARTER and TRASK, Circuit Judges.

J. WARREN MADDEN, Judge:

On September 17, 1968, a bank insured by the Federal Deposit Insurance Corporation was robbed in Seattle, Washington. On October 5, the appellant Parhms was arrested in Bryan, Texas. On November 4, he and two other men were indicted for the robbery. Appellant was brought to Seattle, arriving on November 26, and was arraigned the following day, his appointed attorney being present with him at the arraignment. Trial was set for December 9, 1968. Appellant's attorney, on December 5, filed a Motion to Dismiss Indictment and a Motion to Return Property and Suppress Evidences; on December 6, he filed a Motion to Set a New Trial Date, which motion was granted; on December 11, he filed a brief in support of his previously made Motions to Dismiss and to Suppress. These actions of the attorney indicate communication with his client and aggressive representation. He succeeded in having the trial reset for February 10, 1969.

On January 15, and 23, 1969, appellant wrote letters to the Court expressing dissatisfaction with his attorney. On January 30, the Court caused appellant and his co-defendant Ray to be brought into court with their attorneys, to hear them on the subject of their representation. The Court questioned appellant insistently as to the reason or reasons for his dissatisfaction with his attorney, but appellant did not give any intelligible reason. The Court denied appellant's request to dismiss his attorney.

Also on January 30, appellant's attorney wrote a letter and hand-delivered it to appellant requesting the names of any witnesses who might be useful to the defense at the trial.

On February 10, after the jury had been selected, but in the jury's absence, the attorney advised the Court that his client felt that he was not ready to proceed; recounted to the Court the attorney's unsuccessful efforts to obtain from appellant the names of witnesses who might be subpoenaed, and to enlist appellant's assistance in getting other witnesses to come to the trial, although they could not be subpoenaed; told the Court that although he had had extensive discussions with appellant, he had been unable to learn what defense appellant wished to have presented at the trial.

Appellant was then given an opportunity to address the Court, and he complained of not being able to get in touch with desired character witnesses. The Court thereupon obtained from appellant as much information as appellant had about the correct names and last known addresses of the desired witnesses and directed the Government to prepare and serve subpoenas upon them. This was done and several such witnesses gave testimony favorable to appellant at his trial.

At the trial, the four bank employees who were the only persons in the bank when the robbery occurred, identified appellant as the one of the three robbers who first entered the bank. The robber wore no mask and on his entry stated that he was from the Boeing Plant and desired to obtain a loan from the bank. He was thus visible to the witnesses for about two minutes, after which he drew a gun, announced that it was a holdup, and he and a second robber who then entered the bank ordered the four employees to lie down on the floor, faces down. In moving from her chair, to lie down, one of the employees activated a moving picture camera which was located in the ceiling of the bank and it produced a moving picture of the robbery. Several still photographs of frames from that film were identified by the employees of the bank, before the appellant was arrested, as pictures of the first robber.

The appellant refused to participate in a pre-trial line-up which was arranged by the prosecution. When the appellant was testifying at his trial, the Government's attorney questioned him as to his reason for so refusing, thus bringing to the attention of the jury the fact of the refusal. In his argument to the jury the Government's attorney again referred to the refusal. The appellant claims that these references constituted error. The appellant is wrong. The Supreme Court said in United States v. Wade, 388 U.S. 218, 222, 87 S. Ct. 1926, 1930, 18 L.Ed.2d 1149 (1967):

We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance.

The identification of a person who has committed a crime is of first rate importance to the public. To deprive the prosecution of this potential evidence by refusal to expose one's self to observers who saw the person who committed the crime is a suppression of important evidence and a frustration of the effort to learn the truth. Since a person has, as the Supreme Court has held, no right to refuse to appear in a line-up, one logical inference which may be drawn from his refusal is that he refused because he feared that observers would identify him as the criminal. If that was the reason, his refusal was conduct tending to indicate a feeling of guilt on his part, and therefore evidence of the refusal was admissible, and the prosecutor's comment was permissible as urging the jury to draw a logical and reasonable, though not necessarily correct, inference. A party can, and this appellant did, in his testimony state what he claimed to have been his reason for his refusal to take part in the lineup, and his counsel can, and did in this case, urge the jury to believe his client's testimony. It was not error for the court to admit the evidence of the refusal, nor for the prosecutor to comment on it.

The appellant says that the trial court's "Refusal to appoint effective counsel" was reversible error. Appellant's counsel in the instant appeal, in his brief says, of appellant's trial counsel:

Kenneth O. Eikenberry is a good lawyer. He has a substantial background in criminal law, and Judge Beeks made a considered choice in his selection.

Appellate counsel has not a word to say in criticism of the way in which trial counsel conducted pre-trial proceedings, and conducted the trial which resulted in the appellant's conviction. He urges only that, when the trial day arrived, the appellant and his counsel were not ready for trial. We have seen hereinabove how difficult trial counsel's task was made by the obstinate and irrational refusal of the appellant to name potential defense witnesses, and to indicate even what the nature of the defense should be. When the trial court, in response to the appellant's request that different counsel be appointed, inquired minutely and insistently into the problem, it was apparent that new counsel would be subject to exactly the same objection as counsel who had already, with skill and diligence, done everything which could have been done to prepare for trial. The reason was that the appellant presented no intelligible objection at all to his present counsel, who had been carefully selected by the Court. The appellant did not suggest any particular lawyer as his requested new counsel. If the court had appointed new counsel, and,...