United States v. Wade, 72-1267

• Decision Date: 16 October 1972
• Docket Number: 72-1268.,No. 72-1267,72-1267
• Parties: UNITED STATES of America, Appellee, v. Donald E. WADE and Willie Houston, Jr., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

467 F.2d 1226 (1972)

UNITED STATES of America, Appellee, v. Donald E. WADE and Willie Houston, Jr., Appellants.

Nos. 72-1267, 72-1268.

United States Court of Appeals, Eighth Circuit.

Submitted September 4, 1972.

Decided October 16, 1972.

Randell Templeton, Little Rock, Ark., for appellants.

James R. Rhodes, Asst. U. S. Atty., W. H. Dillahunty, U. S. Atty., Little Rock, Ark., for appellee.

Before VOGEL and VAN OOSTERHOUT, Senior Circuit Judges, and ROSS, Circuit Judge.

VAN OOSTERHOUT, Senior Circuit Judge.

Before us are appeals by defendants Wade and Houston from their conviction by a jury on an indictment charging aggravated bank robbery in violation of 18 U.S.C. § 2113(d) and prison sentences imposed on March 16, 1972.

The Government concedes Houston filed a timely notice of appeal but urges Wade's notice of appeal was not timely and that this court is without jurisdiction to entertain Wade's appeal.

The trial court in a memorandum and order filed May 3, 1972, found Wade was a pauper and that he did not file notice of appeal until about April 11, 1972, or some twenty-six days after the entry of final judgment, but held that under the circumstances he would permit Wade's notice of appeal to be filed and permit him to proceed with the appeal in forma pauperis.

Rule 4(b) FRAP provides that notice of appeal shall be filed within ten days after the entry of judgment but further provides:

"Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision."

The record is incomplete and unsatisfactory on the timeliness of appeal issue. The record reflects that Wade signed a notice of appeal in the federal prison at Terre Haute, Indiana, where he was serving his sentence and that he swore to the notice before a prison official on April 4, 1972, and that the notice was transmitted to the court on April 11 by mail by a prison official. The record further reflects that Wade was represented at his trial by employed counsel but there is no showing that such representation continued after sentence or that Wade had an opportunity to discuss his appellate rights with his counsel. The court's memorandum contains a conclusory statement that Wade was advised of his appellate rights at the time of sentence but we have no record which reflects precisely what was said.

Under Rule 4 the trial court had jurisdiction to permit the appeal even though the ten days for filing had expired, and to extend the time for filing of notice of appeal for thirty days from the normal expiration date, with or without motion and notice upon a finding of excusable neglect. The court made no express finding of excusable neglect but we believe it is fair to infer that he made the finding as such finding is a prerequisite to the court's jurisdiction to extend the time for filing a notice of appeal.

We hold that the trial court under the peculiar facts of this case did not abuse its discretion in extending the time for filing Wade's notice of appeal. The notice of appeal was filed within the permissible extension period granted and hence jurisdiction exists to consider Wade's appeal.

Both defendants urge that they were denied a fair trial by reason of a prejudicial remark made by prospective juror Mrs. Cooper to the effect that Willie Houston shot her son, and additionally urged the court erred in emphasizing such error by the cautionary instruction given to the jury immediately after the incident and repeated in the instructions at the close of the evidence. The asserted error occurred during the course of the voir dire examination of the jury made by the court. The record reflects the pertinent questions and answers to be:

"THE COURT: Do any of you know either of these defendants?

"MRS. JESSIE COOPER: Yes, sir, I know Willie. I don\'t really know him, but—

"THE COURT: You know one of the defendants? Which one?

"MRS. JESSIE COOPER: He shot my son and he—

"THE COURT: Perhaps you better step aside. The court didn\'t understand which one it was, but you better stand aside."

The answer "he shot my son" was an improper statement innocently made by the juror and not anticipated by the court or anyone else. The court immediately stopped the juror from answering further, excused the juror from further service in the case and admonished the jury to disregard the statement.

Defendant made a timely motion for a mistrial based on juror Cooper's statement. The court inquired of the jurors whether any of them knew anything about the episode and received negative responses. All jurors gave negative responses to the court's question, "Does the fact that this comment was made in any way prejudice you against either of these defendants?" Each juror also stated that he could and would give both defendants a fair and impartial trial.

In Butler v. United States, 351 F.2d 14, 19 (8th Cir. 1965), this court held:

"The ultimate and decisive test is whether the jurors who tried appellant were fair and impartial. `Of course there could be no constitutional infirmity in these rulings if petitioner actually received a trial by an impartial jury.\' Beck v. Washington, 369 U.S. 541, 556, 82 S.Ct. 955, 963, 8 L. Ed.2d 98 (1962)."

It is a well-established rule that the allowance of a mistrial motion ordinarily rests in the trial court's discretion and that the trial court's ruling thereon will not be set aside except upon a clear showing of abuse of discretion....