United States v. Wynn, 182-69.
Decision Date | 25 September 1969 |
Docket Number | No. 182-69.,182-69. |
Parties | UNITED STATES of America, Plaintiff, Appellee, v. Waymon Austin WYNN, Defendant, Appellant. |
Court | U.S. Court of Appeals — Tenth Circuit |
Loren L. Mall, Denver, Colo., for appellant.
John E. Green, Asst.U.S.Atty. (B. Andrew Potter, U.S.Atty., with him on brief), for appellee.
Before MURRAH, Chief Judge, and TUTTLE* and BREITENSTEIN, Circuit Judges.
Waymon Austin Wynn was indicted and found guilty by a jury of robbing a federally insured bank in violation of 18 U.S.C. § 2113. On appeal he asserts numerous errors.
He first complains of the prejudicial effect of the instruction given the jury after they had reported that they were unable to agree. When they were recalled to the courtroom they were instructed, without objection, by Judge Daugherty:
We recently reconsidered this type of supplemental charge in United States v. Winn, 411 F.2d 415 (10th Cir.). In that case, after reviewing the case law, we again approved the supplemental instruction as a "proper exercise of the trial judge's common law right and duty to guide and assist the jury toward a fair and impartial verdict", provided they are "given to understand they are not required to give up their conscientiously held convictions." See Burrup v. United States, 371 F.2d 556, 558 (10th Cir.), cert. denied 386 U.S. 1034, 87 S.Ct. 1485, 18 L.Ed.2d 596.
But we have repeatedly suggested that the substance of this charge should be included in the original instructions.1 Indeed, since our decision in United States v. Winn, supra, the Third Circuit has outlawed this type of charge as being subtlely coercive and "an invitation for perennial appellate review." United States v. Fioravanti, 412 F.2d 407 (3rd Cir.). Like the Third Circuit, we refrain from reversing for failure to heed our suggestions in Burroughs v. United States, 365 F.2d 431, 434 (10th Cir.) and repeated in United States v. Winn, supra. But we again call attention to the inherent danger in this type of instruction when given to an apparently deadlocked jury and reiterate the suggestion that, if it is given at all, it be incorporated in the body of the original instructions. We make this in the form of a suggestion, confident it will be heeded in the conduct of future jury trials.
In his next issue, Wynn challenges the validity of the search of his automobile and the consequent admission in evidence of a pistol and three fired cartridge cases found in the car and the car's tires, which matched casts taken from the alleged getaway route.
On a verbal motion to suppress, Judge Daugherty held a hearing outside the presence of the jury. The FBI agents testified essentially that they approached Wynn's home at about 12:30 a. m. with an arrest warrant. The lights were out and the Wynn family was apparently asleep. When Wynn appeared at the door in response to the agent's knock, he was arrested and advised of his Miranda rights. He made no statement. When the agents began to search the house, Wynn asked if they had a search warrant and was advised none was needed. He was then requested to consent to the search of the automobile and either read, or had read to him, a waiver form, which he signed.
He now argues that when the agents advised they needed no warrant to search the house,2 he understood them to mean that they needed no warrant to search the car also, and that the signing of the consent was thus a useless act.
The trial judge specifically found "that the defendant was placed under arrest at his home, that he was fully advised of his constitutional rights, but he was advised the search warrant...
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