Leroy Shorter, Also Known as Roy Lee Shorter v. United States

Roy SHORTER, known as Leroy also Shorter, Appellant, Lee America,

UNITED STATES Appellee.

No. 22360. Appeals Court of States Circuit. Ninth

May 6, 1969. Rehearing on Denial of

As Modified July Francisco, Weinstein, San Daniel H. Atty., Hewitt, (argued), F. James Cal. Cal., Francisco,

Legal Society, Aid San appellant. (argued), Asst. U. S. Paul G. Sloan Poole, Atty., Atty., Jerrold F. U. S. Cecil Atty., Ladar, Fran- U. San M. Asst. S. cisco, Cal., appellee. CARTER, Cir Before KOELSCH FOLEY,* Judges, District

Judge. CARTER, Judge. M. Circuit

JAMES Shorter, Leroy Appellant, found guilty bank trial armed after a robbery in ‍​‌‌‌​‌‌‌‌‌‌‌‌‌​‌‌​​‌​​​​‌​​​​‌​​​‌‌‌‌‌​‌‌‌​‌‌​‌​‍of 18 U.S.C. §§ appeals. 2113(a) (d), now We Affirm. following ques- аppeal presents

tions : flight admissible Is evidence guilt in the absence inference of

as an * by desig- Nevada, Judge, sitting Foley, Jr., Roger District of States Hon. nation. flight appellant connecting identified man the to in the as the foundation a shotgun. charged? bank with the the offense September 18, 1967, ex- the district On 2. Should trial below again to discretion ercised his inherent proof exclude was commenced. The tellers two fеlony positively appellant; convictions identified evidence by “balancing impeachment purposes appellant’s flight preceded his which concerning capture them? the factors” and arrest was introduced over objection; his and evidence the rationale Does fingerprint paper lant’s on the sack was 258, 19 Following introduced. conclusion L.Ed.2d bar use government’s case-in-chief, аppel- impeach offered for counsel, response lant’s in to the trial showing clear a ment absent judge’s inquiry, the court that advised not obtained that the convictions were he intended to call the wit- Gideon Wain rule government ness stand. counsel The then wright, appraised the court of his intention to (1963) ? 93 A.L.R.2d 733 inquire appellant, he should take On June and anoth- stand, whether been con- he had ever er man Bank in robbed the Hibernia San felony, produced ap- victed and Appellant was armed with Francisco. pellant’s inspection certified and ex- two shotgun; he double off barrelled sawed emplified copies judgments of manager threatened to kill the assistant Leroy conviction in which Shorter was bank, $10,000 of the he took over and judg- defendant; named as the gun point. from In several tellers at did ments show process cоllecting money, he represented by was had valid- dropped paper later which was sack ly Appellant admitted waived counsel. Appellant police. retrieved was him, pertained but finger- of his identified on basis asked rule in advance as to the court to sack, print paper which found on the was whether the would be ad- a warrant issued his arrest. was indicated missible. The court July 11, 1967, Federal On officers twо circuit the rule in this favored believed holding warrant, automobile, in an convictions, admissibility of the recognized appellant in another automo- appellant’s the court then declined invita- stopped their bile. The officers vehicle applying ‍​‌‌‌​‌‌‌‌‌‌‌‌‌​‌‌​​‌​​​​‌​​​​‌​​​‌‌‌‌‌​‌‌‌​‌‌​‌​‍the rule laid consider alongside vehicle, had of Columbia Cir down the District officers, stop. also come to One States, 121 U.S. Luck United rolling after of his ve- down a windоw App.D.C. 348 F.2d hicle, identifying up held credentials effect trial court should said, Appellant and heard “FBI.” saw ruling its on exercise admissibility officer. As officer started the. Ap prior convictions. get car, appellant sped away, out of his pellant took the witness stand thereafter pursuit. and the in hot officers followed his examination admitted high speed After a chase several previous had been own that he blоcks, vehicle, appellant stopped his ly violations. twice convicted of jumped out, leaped a five foot fence disappeared from the officers’ view. I. later, twenty minutes officers Some Appellant captured hiding in of his him bushes a near- contends evidence flight by park. day line-up since there was next was inadmissible The flight connecting appellant, represent- conducted foundаtion in which mainly by counsel, charged; on appeared; relies ed two tellers the offense September The case at bar was decided November went 20, 1967. testimony regard on this

Embree v. yet ing the not as been 1963).2 convictions had (9 Cir. question of ad the time solicited at flight after evidence addition, missibility this raised. committed, from crime whether been has held error circuit it reversible has not time, is admis the or at later scеne to to adhere for a district to fail to tend sible such evidence since Burg rule; Luck the cases are the latest of prove consciousness the defendant’s (9 States, 235, 237 F.2d v. United 406 value, any, guilt. of probative if 1969),3 Alli Cir. and United States v. depend flight will evidence son, (9 1919). 17, cir This Cir. June in evi all facts and circumstances adopted rule; cuit has not the Luck question of dence in the case and is Burg States, 406 latest case is United v. jury. Rossetti v. fаct for the 1969).3 (9 Appel 235, F.2d 237 Cir. (9 Cir.), 86, States, cert. F.2d 87 315 lant’s contention is therefore without 45, 814, 11 L. denied, 84 375 U.S. S.Ct. merit. D’Argento (1963); Ed.2d 49 1965), (9 States, 327, F.2d 333 Cir. 353 III. 1591, 963, denied, 86 cert. 384 S.Ct. U.S. Appellant contends must his conviction (1966). 16 L.Ed.2d 675 be reversed the rationale Embree, supra, court Burgett In Texas, 88 S.Ct. U.S. flight merely did that held evidence (1967) 19 L.Ed.2d bars probative not sufficient value have impeach use for convictions an admission that to amount to ease ment when those ob convictions werе guilt there no other evidence where tained in violation v. Wain of Gideon guilt. not does wright, Embree defendant’s L. 372 U.S. 83 S.Ct. proposition evidence stand for the (1963), Ed.2d 93 A.L.R.2d 733 flight unless admitted guaranteed shall not be to counsel government, admis condition of aas felony proceed to defendants state lays sibility, foundation ings. first prosecution’s involved the sought being for knew prior convictions, use with- obtained charged. particular Morе offense punishment out to un- enhance over, bar, ample there was in the at statute; der Texas recidivist appellant did evidence to indicate that (389 at Court stated U.S. at S.Ct. sought being for the bank know he was 262): permit “To obtained conviction robbery. hold We therefore Wainwright in violation of Gideon v. contention be without merit. against person sup- used either guilt port punishment or enhance Beto, (see another offense Greer II. 16 L.Ed.2d U.S. Appellant court contends 526) principle to erode tlie its should exercised * ** case. The admission con exclude of his evidence criminal constitution- conviction which is Unit rule of Luck v. victions under the ally infirm Gid- under the standards States, U.S.App.D.C. ed Wainwright ‍​‌‌‌​‌‌‌‌‌‌‌‌‌​‌‌​​‌​​​​‌​​​​‌​​​‌‌‌‌‌​‌‌‌​‌‌​‌​‍prej- inherently eon (1965). of this facts On * * actually case, ruled never the trial court udicial Wong flight gen- v. United evidence Sun bad reservations about еrally. relied 83 upon by appellant, S.Ct. ques- only the involved Judge Hamley points out, Burg In as flight tion as to whether the defendant’s opinion Judge demonstrated Madden’s “justified guilt an inference of sufficient compliance with the “orthodox” there was generate probable cause for his arrest.” Ely’s rule, Judge concurrence demon- (p. 483, However, No. 10 footnote “balance the strated trial court did 407) thus its discretion. indicatеd the factors” and exercised S.Ct. not decide III. need now whether Does rationale prosecution’s use of U.S. S.Ct. impeach L.Ed.2d 319 bar the use of obtained without impeachment pur- the rationale convictions offered ment violates showing Burgett. poses clear the case at bar the absent a pros not offered were were obtained viola- Wainwright, ecutor; they the tes rule in were timony While himself. (1963)?

prosecutor intended that he 93 A.L.R.2d 733 stated priors if took offer indicated it would stand II. offered, prosecutor if admit them After the Government had its rested or to to do had chance either so never case, appellant’s counsel, pres- out of the change Appellant did not his wait mind. jury, of ence the advised Court that the priors in if fact be to see the would appellant testify the in would his own object them;4 rath offered and then defense. The Government informed the er, aas he the himself offered evidence appellant’s Court and that for the strategy, probably to soft matter of trial impeachment, of it would ask eyes anticipated of in en the the blow appellant on cross-examination whether strategy, jury. Having adopted this the previously or not he had been convicted interest, appeared his which to be in best felony. reprеsent- of a The Government complain that he cannot be heard to now properly ed it that had authenticated offering such evidence his own act of copies felony of ap- two of rights. We violated his pellant Ap- in the of State Louisiana. appellant’s therefore hold contention pellant’s counsel, having seen the rec- be without merit. ords, conceded the convictions were judgment of The the district felonies, argued but the that

Affirmed. should, discretion, in the of its exercise rule that to admit it would refuse the Judge FOLEY, prior felony ROGER evidence the (Dissenting): appellant’s youth because time at the the convictions in 1958 and majority’s agreement in the I am with appeared rec- the from disposition appellant’s rela- contention proceeding ords the that Louisiana admissibility evidence tive Ap- was counsel. without flight. urged pellant’s counsel to fol- major- respectfully from the dissent low the of Luck ity’s and third treatment of the second U.S.App.D.C. questions. 763, and in the exercise of sound dis- Judge by stated Carter As cretion indicate at that time that it would majority, questions are: these exclude of the the evidence Louisiana prejudicial convictions because effect judge exercise II. a district Should proferred outweighed of the evidence its proof to exclude inherent discretion an probative value credibil- as prior offered ity. balancing After some discussion with impeachment purposes coun- concerning sel, them? the Court factors refused to follow Luck v. practice objec- matters out of hear better often is to make an 4. Trial courts jury grounds presence a record of tion “on of the heretofore stated.” stipulation objections objec- are made and over- Here there no that counsel’s particular need in time not be made when ruled advance the evidence However, Moreover, problem in the trial. offered. arises it was government in is reached the trial lant and not the who when the presented, particular evidence convictions. where the States, stating pаrticular cir- this the search for in a truth jury convic- the rule is that case for the to hear defend impeach story tions ant’s are admissible de- than to know goal Appellant then took the wit- fendant. conviction. The of a criminal charge disposition of the ness stand. His trial is view anticipat- position pos Court’s announced ing accordance with the truth. The sibility suc- would be of the Government rehearsal defend case, given proving con- criminal cessful record ant’s victions, especially the ad- if it solicited from means that the will con- left of the missions that had twice been be without one version truth, may victed in Louisiana. felonies contribute objective. experienced trial hold to me to Since it seems unfair judge regard sensitivity this has the trial has normally upon to can relied prior convic- must in all cases admit strike a reasonable balance between impeachment purposes, I dis- tions for and of interests agree majority approve with (Footnotes public.” and 9 in the Judge language McGowan used pages quotation above are found at States, supra. Be- in Luck v. United case.) 768 and Luck Judge F.2d, ginning page at of 348 768 The fact of Columbia that McGowan states: give appears Code to the trial court dis- “ * ** may well cases There be (see 6, page cretion Footnote of might judge think where the trial case) Luck does not diminish the wis- helped of would be cause truth justice dom and of of view jury letting by hear more expressed Judge by McGowan. by story the defend defendant’s than Also, following attention to the call foregoing opportunity be ant’s support additional authorities which prejudice founded of the fear of cause judge position have trial does There conviction.7 deciding in whether trial well be other cases where felony to of con- admit evidence of prejudicial affect believes impeach to a defendant. victions offered impeachment outweighs pro far Cir., 1959, States, 268 Daniel v. 5 United prior convic bative of the relevance 852; Dea- F.2d United v. at States credibility. This of issue ton, Cir., 117. 381 F.2d is, course, trial last of a standard whiсh judges every day Judge con apply Hamley’s Ely’s in Judge other See texts; Burg concurring opinions it util and we think has both United in v. ity applicability States, Circuit, 1969). (9th field.8 in this F.2d 235 exercising this re “In discretion in III. might spect, number of factors relevant, reverse, Appellant urges of the nature such as the to this Court length prior crimes,9 Burgett contending of the crim of that the rationale record, age supra1 and circumstances inal the use v. bars all, defendant, and, impeachment ex above when those important more tent to which it is in convictions were obtained Burgett 1961) ; (conviction was decided November in v. Wiman Wilson (6 (convic 1967), the case at bar went while Cir. September 20, 1964) ; (4 No Federal tion in Williams v. Coiner Cir. restricting Burgett 1968), ‍​‌‌‌​‌‌‌‌‌‌‌‌‌​‌‌​​‌​​​​‌​​​​‌​​​‌‌‌‌‌​‌‌‌​‌‌​‌​‍(conviction has been found F.2d in only. application 1936) ; prospective Federal States ex rel. v. United Johnson applied Burgett Yeager 1968), (3 doctrine Courts Cir. retroactively 1958) (conviction ; date to cases v. Bates Nelson Burgett Turner of the Clark v. decision. L.Ed. F.Supp. 909, (conviction (Utah D.C.1968), 1956). 2d 21 Wainwright, The authenticated records v. the standards Gideon Gideon, supra. lant’s two Louisiana was held that right presumption was guaranteed the Sixth raises a to counsel counsel, rendering was denied his Constitution Amendment Burgett proceedings applicable void. made to the States States, presume Amendment, making supra. To waiver it un- Fourteenth imper- person is from a silent record to convict he had missible. state court unless Cochran, supra; Carnley validly counsel. counsel or waived (1962). 884, L.Ed.2d 70 The authenticated records State interest, note, that after with copies Louisiana, Rapides, Parish down, de- came cided, but before ap- an which are attached as exhibit California, following: рellant’s brief, reveal the Coffey, 1967, People 67 Cal.2d (Burglary) 41,467. 1. Case No. stated, at Cal.Rptr. 430 P.2d 9, 1958, On October page 25: present open The record court. “We are convinced that the use of a presence of counsel and silent as to constitutionally prior convic- invalid of coun- there is no record of waiver impeach credibility tion to testimonial arraignment sel. Defendant waived impropеr, and that to allow such guilty. pled impeachment is error under California 41,467. No. On October Case (Cf. People (1948) law. Hamilton 1958, the defend- record shows that 45, 50, 33 Cal.2d 198 P.2d Mac- present open ant was court. Dept. farlane v. Alcoholic Bev. Con- presence of coun- record is silent as to (1958) 84, 89, trol 51 Cal.2d P.2d sel and there is no record waiver 769; People Banks Cal.2d sentenced counsel. Defendant was 370, 382, 7, 669, Cal.Rptr. fn. 1 348 years in thе Louisi- two at hard labor Further, 102.) P.2d we are of the Penitentiary. ana State view that such error is federal con- 44,617. (Robbery) No. Case stitutional It dimension. is clear 1959, 2, The shows record November crime, a conviction of sustained, no matter when open present in that the accused was constitutionally invalid if is court, arraigned pled and that he was was obtained guilty. The record is silent as Sixth and Fourteenth Amendments. presenсe there is counsel and (Gideon Wainwright, supra, U. 372 record waiver counsel. 799; S. 83 S.Ct. Doughty Maxwell, supra, U.S. 376 44,617. The record Case No. 650; 84 11 S.Ct. L.Ed.2d 3, 1959, de- that the November shows LaVallee, supra, States v. open present court fendant was Woods, supra, F.2d re without The defendant was counsel. Cal.Rptr. Cal.2d 913.) 409 P.2d years at hard labor sentenced five equally think it clear that Penitentiary. in the Louisiana State conviction, at utilization of such a оf coun- There is no record of waiver offense, subsequent trial of a sel. any leading purpose conviction appel applies to The rule of Gideon offense, subsequent for such is viola limited to It is not lant’s convictions. process tive of the due clause of prospective application. v. Tex Fourteenth Amendment.” Maxwell, as, Doughty supra; 376 U. by impressed I L.Ed.2d am that al- the fact S. S.Ct. Wainwright, though Ap- (1964); the Texas of Criminal Pickelsimer v. Court (1963); peals 80, 11 because L.Ed.2d affirmed conviction U.S. S.Ct. La enhance- did in fact suffer ex rel. Durocher not States punishment, Vallee, Cir., 1964, ment of disregard prior was instructed to of Bates were admitted prior convictions, Supreme proper did in the state court under instruc impeachment take the same view. Twice Jus- after Douglas voluntarily tice the accused defendant stressed had takеn the “suffered of his anew” denial stand. The district held that no by to counsel. error had been committed the state judge, petition. court trial and denied the rule, it, prior as I see is that conviction, Gideon, Judge’s appeal under cannot On void from the District guilt, any purposes, proof decision, Circuit, used for in Bates v. Ninth punishment impeach- enhancement of ment, Wilson at 772 denying Bates, process. on the without due contеntion of “That deprived process he by of law due against agree While I that the evidence the use made of his convic- strong guilt his and that tions”, “testimony con- found that record, is clear from and that this cerning elicited convictions was po- is a most serious crime case—a Bates on di- his own counsel from rect examination” violence, tential I concede that and while added); (emphasis might, we lant, in all tо this fairness gave that the state instruc- trial rule, apply harmless error limiting tions use be made unequivo- cannot reason around the flat prior-convictions testimony; con- Douglas Bur- cal statement of Justice stating, point by cluded on this hold “We gett, page 115: that the use of did criminal “The admission process not result in a denial of due constitutionally which is conviction petitioner the interest of the infirm the standards under protected by the instructions”. inherently Wainwright prejudi Nelson, In Bates v. say cial and are unable we disregard it made instructions granted certiorari from this de- beyond error ‘harmless Circuit, cision of the Ninth and Octo- the mean a reasonable doubt’ within ing 14, 1968, judgment ber vacated the California, Chapman U. Ap- remanded the ease to the Court of L.Ed.2d 705.” S. peals for further consideration argument believe light Burgett Texas, 109, v. 389 U.S. Burgett di- answered should be under 258, (On S.Ct. 19 L.Ed.2d 319. mаjority avoided, rectly as and point.) conviction for treat- no real basis done. I see has I would remand this case order that differently ing one in from this case opportun- the Government an were ity satisfy Court, if it District Government, into evi- or came can, Louisiana questions response to direct dence were not obtained in cross-examination under while Gideon rule. Under the Gov- by the Government. presumption еrnment must overcome the (N.D.Calif.S.D. In Bates Dickson2 that the v. was denied his 989, 983, 1964), F.Supp. case, wherein and the same under question of corpus the presumed writ of habeas waiver counsel cannot be proper Any from admission a silent waiver of record. is competently raised as a Bates was counsel must be and intel- sue, ligently Zerbst, held that the District made. Johnson 295, 239; Bates and Cha People histories of 2. The 83 S.Ct. 9 L.Ed.2d see Chavez, 778, 907, Chavez vea cases are summarized 50 Cal.2d 329 P.2d 683, 1962), (9 946, 356, cert. Dickson Cir. cert. den. 358 U.S. 79 S.Ct. 151, 880, L. 83 S.Ct. L.Ed.2d see also denied 371 U.S. Chavez v. Dickson 931, (9 rehearing 1960), denied 371 U.S. Cir. Ed.2d accused; fully protected instruction L.Ed. 58 S.Ct. U.S. proposition relied we had for that (1938). If the Gov- 146 A.L.R. 357 States, 352 U.S. v. United satisfy Delli Paoli cannot ernment met, case 1 L.Ed.2d 77 S.Ct. were the standards expressly in Bru on that overruled judgment and should be reversed pro ton, Burgett, Bruton and Roberts trial. a new afforded lant guidelines hеlpful as to the effi vided Rehearing, efficacy etc. cacy instruc for such Petition or lack of on Order California, Harrington v. tions. also See CARTER, Cir Before KOELSCH L.Ed.2d S.Ct. ‍​‌‌‌​‌‌‌‌‌‌‌‌‌​‌‌​​‌​​​​‌​​​​‌​​​‌‌‌‌‌​‌‌‌​‌‌​‌​‍395 U.S. FOLEY,* Judges, (June 2, 1969) involving Bruton. also Judge. Judge, KOELSCH, concurs. Circuit CARTER, Judge: Circuit M. JAMES unanimously to having panel voted Judge, FOLEY, District ROGER rehearing deny petition for stands his dissent. hearing in suggestion reject for hav- banc; members and all having ing so been advised hearing in banc. voted petition re- ordered that It is suggestion for hearing is denied and rejected.

hearing in banc is FOR PETITION ON MEMORANDUM America, REHEARING UNITED STATES Appellee, Wilson, 385 Bates v. The dissent cites 1967) (9 v. Nel and Bates F.2d 771 Cir. LUGO-BAEZ, Appellant. Gilberto son, vacating judgment No. remanding Wilson, the case Bates v. Appeals United States Court of appeals. The dissent to the court Eighth Circuit. remanded states that case June light of Bur further consideration gett Texas, S.Ct. U.S. Actually (1967). 19 L.Ed.2d 319 “for further consid remanded light eration Bruton 88 S.Ct. Russell, Roberts v. The issue com 20 L.Ed.2d 1100.” three and the

mon to Bates v. Nelson Bruton, Burgett, cases cited in it — cautionary

Roberts, instruc concerned no such

tions. But the at bar has

link. suggest telling simply re- this court to

Bates was limiting our that a examine conclusion Foley, Jr., Judge, Nevada, desig Roger sitting by States District *Hon. nation.

Case Details

Case Name: Leroy Shorter, Also Known as Roy Lee Shorter v. United States

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 11, 1969

Citation: 412 F.2d 428

Docket Number: 22360_1

Court Abbreviation: 9th Cir.