United States v. Reid, 16922.

• Decision Date: 14 May 1969
• Docket Number: No. 16922.,16922.
• Citation: 410 F.2d 1223
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Louis REID, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

410 F.2d 1223 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. James Louis REID, Defendant-Appellant.

No. 16922.

United States Court of Appeals Seventh Circuit.

May 14, 1969.

COPYRIGHT MATERIAL OMITTED

Roger P. Pascal, Thomas P. Luning, Chicago, Ill., James Louis Reid, in pro. per., for appellant.

Carl W. Feickert, U. S. Atty., Jonathan J. Seagle, Asst. U. S. Atty., East St. Louis, Ill., for appellee.

Before CASTLE, Chief Judge, CUMMINGS, Circuit Judge, and HOLDER, District Judge.¹

CUMMINGS, Circuit Judge.

Defendant, a prison inmate, was tried twice on an indictment charging him with assaulting a federal penal institution employee engaged in the performance of his official duties.² Self-defense was the justification offered. The first trial resulted in a hung jury, but two months later a second jury found defendant guilty. This appeal is from the three-year sentence imposed after his motion for a new trial was denied. The sentence was to run consecutively to a previous sentence being served.

According to the evidence, about 9:30 p. m. on January 27, 1967, the prison authorities of the United States Penitentiary at Marion, Illinois, were investigating an altercation that had occurred earlier that evening. Defendant was reported to have had a weapon at that time. Therefore, the guard supervisor summoned defendant to his office for questioning. The search of defendant's person disclosed no weapon, but one of the prison guards testified that he found a combination padlock with a rag attached to its hasp under the pillow in defendant's cell. As a result, defendant was ordered to the segregation unit. While he was being escorted there by two guards, defendant admittedly struck one of them, Robert Meadows, at least once on the head. Defendant and another inmate, Don E. Grimes, testified that defendant struck Meadows because he was twisting defendant's arm. On the other hand, three prison guards said that the assault was without provocation.

Three days after this incident, FBI Agents Claude Grace and James Stewart interrogated defendant. They testified that they warned him of his constitutional rights and read him the usual FBI waiver of rights form. According to their testimony, after defendant read the waiver of rights form, he signed it and then stated that he was "mad" and had assaulted Meadows without provocation. On the other hand, the defendant testified that he did not sign the waiver of rights form and that he made no statements to the FBI agents. He admitted that he had a lock in his cell, but claimed it had no rag or string attached to it. Such locks were normally issued to prisoners. According to Agent Stewart, defendant said the lock "was not a weapon and that the cloth tied to the hasp was not intended as a handle. He also said that there was no special purpose for having put this cloth on the hasp of the lock."

Defendant charges that four errors were committed that entitle him to a new trial. We have concluded that a new trial is necessary.

Padlock Testimony

Prior to trial, defendant moved for discovery of any weapons in the possession of the Government taken from his possession on January 27, 1967. The Government successfully opposed this motion on the ground that the requested objects were not material to the preparation of a defense. Before the start of the second trial, defense counsel objected to any reference to the padlock since he was not charged with its possession. This objection was refused as premature.

After the second trial commenced and for the same reason, defendant's counsel objected on several occasions to testimony about the padlock found in his cell. These objections were overruled, and the prosecutor exhibited the padlock with a piece of cloth tied to its hasp to the Government's first witness, the supervisor of guards. He was permitted to testify that this was the padlock that was brought to his office and could have been used as a weapon. He also testified that such padlocks were issued to prisoners but not with the cloth "handle" attached to the hasp. At the close of this witness's testimony, the district court sustained defendant's objections to the admission of the padlock into evidence. However, the testimony concerning the padlock remained in evidence.

Defendant was tried for assaulting a correctional officer by striking him with his fist. This is apparently the reason for the Government's refusal to produce the lock before trial on the ground that such a weapon was not material to the preparation of a defense. The Government now seeks to justify its about face at trial as to the materiality of the lock by asserting that the lock was part of the res gestae of the crime, but even if we were to recognize that often criticized concept, the padlock was not so closely connected with the crime charged as to be admissible as part of the res gestae. The testimony reveals only that some altercation was under investigation and that defendant was reported to have a weapon in his possession. We do not know, and it was not the purpose of this trial to determine, whether defendant was even a participant in that altercation or whether any weapon was involved at all.

While we agree with the trial judge's ruling that the padlock was inadmissible, it was improper to permit the Government to circumvent this ruling by eliciting extensive testimony about the padlock, including an inflammatory expression of opinion about the probable use of the lock. Even had a curative instruction been given, it is unlikely that the jurors would distinguish between evidence which was identified and exhibited before them and exhibits formally admitted into evidence.

The Government offers the suggestion that it was necessary to introduce the padlock testimony in order to establish a basis in fact for the guards' authority to escort the defendant to punitive segregation. The Government's brief volunteers that "Correctional officials who subject a prisoner to punishment in defiance of prison regulations do not come within the protection of the statute, as their actions are unauthorized." Even if we were to accept this surprising invitation to prison inmates to resist with force a prison guard acting in furtherance of his orders if the inmate feels that the supervisor's finding of wrongdoing is incorrect, such was not the theory of the defense in this case. Defendant claims that he struck the guard solely in order to defend himself against unprovoked physical abuse, not because of some real or imagined grievance against the supervisor's order that he be subjected to solitary confinement for violation of prison regulations concerning the padlock.

We can only regard the testimony concerning the lock as highly prejudicial and without probative value.³ Its presence could only serve to invite the jury to speculate about other bad acts which the defendant may have committed. The introduction of testimony concerning dangerous weapons found among the belongings of a person charged with a crime, no part of which depends upon the use or ownership of the weapon, has consistently been regarded as prejudicial error requiring a new trial. Thomas v. United States, 376 F.2d 564, 567 (5th Cir. 1967); Moody v. United States, 376 F.2d 525, 532 (9th Cir. 1967); Brubaker v. United States, 183 F.2d 894, 898 (6th Cir. 1950). Only where there is independent evidence tending to relate the use of the weapon to the commission of the offense has the introduction of such evidence been permitted. United States v. Blackburn, 389 F.2d 93, 95-97 (6th Cir. 1968). We hold that this evidence was unduly prejudicial and inflammatory and that no reference to it may be permitted at the next trial.

Denial of Credibility Instruction

At the conference on instructions, defendant tendered the following credibility instruction No. 3:

"The Court instructs the jury that the testimony offered by officers shall not be given any greater weight or credibility by the fact alone of their office, but that such testimony shall be weighed and considered as to credibility on the same ground and for the same reason that the testimony of all other witnesses are weighed and judged."

Even though the Government had no objections to this instruction, the district court declined to give it, stating:

"I am going to refuse it, because I am already giving one on credibility of witnesses, which includes all witnesses, and I am not singling out a particular witness, which I would be doing here."

The court did instruct the jurors on the credibility of all witnesses, admonishing them to determine:

"* * * whether or not each witness had a particular prejudice or biasness or feeling in the outcome of the case. Consider the witness\'s relationship to the Government or to the defendant; * * *."

However, the court thereafter singled out the defendant's credibility by instructing the jury:

"* * * You have a perfect right and it is your duty to take into consideration the fact that he is the defendant and that he is interested in the outcome of the case. * * * his interest, prejudice, biasness, result of the outcome of the case or anything else may affect his testimony."

In this case, the outcome depended upon whether the jury believed defendant's or the officers' versions of the assault. As the hung jury in the first trial indicated, the credibility issue was indeed the whole case. Therefore,...