Appellant Richard Allen Tanner (hereinafter referred to as Tanner or Appellant) was tried by a jury on a two-count Informantion. In Count I it was charged that “on or about August 28, 1966, in the Western Division of the Western District of Missouri, (Tanner) transported and caused to be transported in interstate commerce from Grove, Oklahoma, to Kansas City, Missouri, a stolen motor vehicle, to wit: a 1965 Chrysler, and he then knew said motor vehicle to have been stolen, in violation of Section 2312, Title 18, United States Code.” In Count II Tanner was charged with a violation of Section 2313, Title 18, United States Code — the receipt by him of said stolen motor vehicle, which was moving as interstate commerce, he then knowing said motor vehicle to have been stolen. At the close of all of the evidence, Count II was dismissed, and the case submitted to the jury under appropriate instructions, solely on Count I. This appeal is from his conviction by
During all proceedings in this case, Tanner has been represented by court-appointed counsel. Trial counsel was a member of the staff of the Legal Aid & Defender Society of Greater Kansas City. In the preparation of brief on this appeal, and for oral argument before this Court, different counsel represented Tanner, under appointment by this Court pursuant to application of Tanner. For reasons which will become apparent, we will first consider the contentions of Tanner which are before us as a result of brief and argument of such latter counsel.
Tanner’s first contention on this appeal is that he “was denied substantive due process as a result of ineffective representation by his Court-appointed defense counsel.” As one specific basis of the charge of “ineffective representation” Tanner contends that his counsel “failed to preserve error during course of trial by timely and proper objections.” The objections which Tanner contends should have been made, allegedly refer to “hearsay,” “leading questions” and “opinion testimony.” In Appellant’s brief after reference to and discussion of instances of such alleged improper failure on the part of trial counsel to make objections, we find the following significant statement: “Appellant readily concedes however that this might well be construed as a matter of trial tactics and strategy constituting only a procedural matter and of no genuine substance.” With this conclusion we agree.
We have carefully examined the transcript of the trial proceedings. Counsel’s failure to make the objections referred to was obviously the result of his considered exercise of judgment involving trial tactics, and we are satisfied that no violation of any substantial right of Tanner, or prejudice to him, occurred by reason thereof.
As the only other specific basis of the charge of “ineffective representation” Tanner states that his lawyer “failed to preserve, possible assignments of error by failing to file any motion for new trial.” Tanner argues that, because of such failure, he was denied “his vital right to appeal,” and, proceeding with this argument, contends that “failure * * * to file a Motion for New Trial and preserve thereby all possibility of error for appeal constitutes such ineffective representation as to render Appellant the victim of a farce and a sham within the purview of the Malfetti and Hendrickson cases, supra, to the effect that his substantive constitutional rights were denied him.” 1 While conceding that a convicted felon’s retrospective dissatisfaction with counsel is not an unusual occurrence, and in itself is no indication of denial of substantive due process, Tanner contends that this failure on the part of his trial counsel so violated the standard required for effective representation as to “shock the conscience of the Court.” Yet the only alleged “point of error” which Tanner contends might properly have been raised had such motion been made, was insufficiency of the evidence as to his knowledge, at the time he transported said vehicle in interstate commerce, that the vehicle had been stolen.
At the close of all of the evidence, defense counsel made a motion for a directed verdict,
2
which was
Although the right to appeal from a conviction in a criminal case is within the protection of the Constitution (Brown v. Looney,
During oral argument counsel for Tanner raised the question of the propriety of trial defense counsel’s making the motion for directed verdict in the presence of the jury, and cited United States v. Coke,
Appellant’s remaining contention (as briefed and argued by counsel) is that the trial court committed error in denying his motion for directed verdict (judgment of acquittal) because of the insufficiency of the evidence to support a jury’s finding that he knew the car was stolen. The applicable general rules here involved are well established. Maguire v. United States,
“In considering the motion for acquittal, the trial court must view the evidence in the light most favorable to the government, together with inferences which may fairly be drawn therefrom, and then determine whether there is substantial evidence from which a jury might properly find the accused guilty beyond a reasonable doubt. This standard is applicable to each of the several elements of the offense. Cartwright v. United States, 10 Cir.,335 F.2d 919 . To convict under 18 U.S.C. § 2312, the government must prove (1) that the vehicle was stolen, (2) that it was transported in interstate commerce, and (3) that such transportation was with knowledge that the vehicle was stolen. Allison v. United States, 10 Cir.,348 F.2d 152 .” Maguire v. United States,358 F.2d 442 , (10 Cir. 1966), cert. den. Giles v. U. S.,385 U.S. 870 ,87 S.Ct. 138 ,17 L.Ed.2d 97 .
No question is raised as to the sufficiency of the evidence concerning the first two elements of the offense. Conclusive evidence that the motor vehicle here involved was stolen during the night of August 28, 1966, in Grove, Oklahoma, was in effect stipulated into the record. Sufficient evidence that the defendant transported this vehicle in interstate commerce (from Oklahoma to Missouri) is in the record. Brief reference will be made to some of the evidence relevant to the remaining element.
From an examination of the record, including portions of the testimony stated in the preceding paragraph,
Pursuant to request of Tanner, and based upon his expressed dissatisfaction with the services of his court-appointed lawyer for this appeal, this Court permitted him to file a supplemental brief, pro se. This is an unusually lengthy brief, and contains several pages of authorities cited in support of his contentions. It obviously is the result of diligent effort, painstaking research, and tenacity of purpose. No purpose would be served, and this opinion would necessarily be unduly lengthened, by a detailed discussion of each of Tanner’s numerous complaints which in essence charge his trial lawyer generally and specifically with incompetence, ineffectiveness and inadequate representation, and the trial court with “plain error.” We have carefully examined the entire record and each complaint in the light of that record. Some of such charges or complaints are patently devoid of merit. Others are of such a nature as to warrant special consideration.
We note that the trial court, in its Order denying Tanner’s written application for appointment of “new counsel” for the appeal herein, stated: “Trial counsel in this case was completely competent * * Tanner contends that he was “substantially prejudiced” by his trial lawyer’s failure to “properly protect appellant’s right of confrontation and cross-examination of Mr. Virgil Boswell.” The record discloses the following facts: Trial had been set to commence on April 10, 1967. At that time Tanner and his lawyer appeared in the Chambers of the trial court, with the prosecutor, for a pretrial conference requested by the Appellant. One week previously Tanner had been arraigned, and had requested and received a continuance to try to procure some witnesses. Although his lawyer had, at the time of the arraignment, requested Tanner to give him the names and addresses of witnesses whom he wished to be subpoenaed, he had failed to do so, and had failed to see his lawyer thereafter until the morning of April 10th. At this pretrial conference, Tanner requested another one-week continuance. The trial judge considered this to be an oral motion for continuance, and granted it. At that time, it appeared that the only witness for the prosecution who was not local was Virgil Boswell, a businessman who had driven from Oklahoma to testify, and who was anxious to return home. The prosecutor stated that Boswell would testify that he was the owner of the stolen car involved in this case, and had not given permission to anyone to drive it, and inquired whether the defense would be willing to enter into a stipulation, to be used in the trial, as to Boswell’s testimony, so as to eliminate the necessity of another trip. When one of defense counsel asked Tanner if such a stipulation would be agreeable with him, he answered: “I would rather have that stipulation.” Thereafter the prosecutor dictated into the record what Mr. Boswell would testify to, in the presence of Tanner, counsel, and the Court. The following colloquy then took place:
“THE COURT: Now, Mr. Tanner, that is what the District Attorney says this man would testify this morning. He is here this morning. Do you have any questions about his testimony ?
THE DEFENDANT: No sir.
THE COURT: Are you willing to stipulate — that that can be stipulated so that he wouldn’t have to come back here?
THE DEFENDANT: Yes, sir.”
At the trial the stipulated testimony was read into the record. Boswell’s testimony, in substance, was that he was the owner of the vehicle involved, that it had disappeared at a time and from a place where parked, that he had given no permission for another to drive it, that he had received $2700 from his insurance company for his loss, and that he did not know either Tanner or Manis. The United States not only did not contend or attempt to prove that Tanner (or Manis) was the person who had stolen the vehicle, but all of the evidence was to the contrary. Tanner’s present contention is patently frivolous.
Tanner strongly urges, as further evidence, of the gross inadequacy of counsel’s representation, the failure of counsel to take such action as he (Tanner) now considers would have been appropriate for his protection if called as a witness. Just what such “protective” action trial counsel could or should have taken is not clear. Tanner argues:
“Appellant argues before this Honorable Court that common fairness dictated that appellant have the right to tell his side without suffering an inevitable fatal prejudice derived from the negative use of appellant’s prior convictions. 3 The record clearly shows that appellant has positively-stated his innocence. Appellant could have honestly explained facts in the record which have gone unexplained because only this appellant could controvert such perjured facts; * * * ”;
and,
“The uncorroborated perjury of witness MANIS was allowed to stand ‘uncontroverted’ for two reasons: First, (not here relevant); and, secondly, because the government forced this appellant to remain silent by holding appellant’s prior convictions over his head.
The government created this situation of inevitable prejudice. From the inner sanctum of their office they conceived the plan to coerce this appellant into silence by the use of a past record which would be fatally prejudicial * * * »
At the trial Tanner did not testify. The record is silent as to the reason for his decision. A reasonable inference would be that it was pursuant to advice of his counsel, and the result of his own judgment, in view of his experience. There is absolutely nothing in the record that indicates Tanner expressed to his counsel, or the Court, a desire to testify. His quoted statements in support of his present contention (as is much of the alleged factual basis of other contentions) are outside of the record and may not be considered by us. It should be emphasized that we do not have before us a proceeding in the nature of a collateral attack, the pleadings in which lay an adequate foundation for an investigation of the competency of counsel, or the conduct of the prosecutor. Hendrickson v. Overlade, supra. This is an appeal from judgment of conviction, and “We cannot, of course, concern ourselves with anything which does not appear in the record.” Jackson v. United States,
Tanner also contends that he was substantially prejudiced by the instructions to the jury- — that, in particular, by including therein the usual “accomplice” instruction, the trial court was guilty of “plain error.” Not only was no objection made by defense counsel to this, or any other portion of the instructions, but this instruction was included in the charge at the specific request of defense trial counsel and over the objection of the prosecutor. This issue was not preserved in compliance with Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and the general rule is that “The failure to properly object to the instructions before the jury retire's to consider its verdict precludes raising any objection to the ju
“At the outset of our consideration of this appeal we are met with the problem that the instructions complained of were only given to the jury by the court below after appellant’s initial objection thereto was withdrawn, thus bringing into operation Rule 30, F.R.Cr.P., which provides, in part: ‘No party may assign as error any portion of the charge or omission therefrom unless he objects thereto * * * stating distinctly the matter to which he objects and the grounds of his objection.’ There is no question, however, that this rule does not preclude our consideration of plain error in the giving of instructions under Rule 52(b), F.R.Cr.P., in order to prevent a miscarriage of justice.”
See, also, Cave v. United States,
Relying on Desmond v. United States,
The record herein discloses that the United States Attorney, during final argument, and while commenting about the license plate, said: “This is the plate that the defendant attached to the back of the Chrysler down in Oklahoma. There is no testimony that he didn’t attach it.”; and “Now, on element No. 1, the act of transporting the car between states, we have shown that the defendant got into the Chrysler in Oklahoma and then drove it to Kansas City, Missouri. Glenn Manis followed the defendant in his car. This evidence has not been disputed.” The references to the failure of defendant to testify were veiled, but it is obvious that, as to each portion of the evidence referred to, the only person who was in a position to contradict it by direct evidence was Tanner. The challenged statements were improper. Barnes v. United States,
However, factually, the facts before us are much more similar to those in Holden v. United States,
Finally, Tanner vigorously protests the alleged exclusion of certain “impeachment testimony” of defense witness Betty Kinder. His attack is two-pronged, directed at both defense counsel and the trial court. In his pro se brief appellant asserts:
“This appellant had three (3) reputable witnesses of unimpeachable character present at trial and prepared to testify to the following as to each witness related to the appointed counsel * * *: To wit:.”
followed by the names of William A. Tanner, Betty Kinder and John Tanner, and the statements the appellant contends that each of such persons related to defense counsel as having been made by Manis to such person, which statements were allegedly inconsistent with or contrary to portions of his testimony as a witness for the Government. John Tanner was not called to testify; William A. Tanner and Betty Kinder did testify as defense witnesses. Appellant concedes that the prescribed evidentiary procedure was not followed by his counsel, in that he failed to “lay a foundation” in accord with the well-established rule. In Robinson v. United States,
“ * * * to contradict the witness by evidence of what she had said out of court to other persons on the same subject contradictory to what she after-wards testified in court, it is essential that she should first be asked whether she made such statements at a fixed time and place, to certain persons, and that the words used or their substance be stated to her to * * * reply intelligently.”
Also see: Thomas v. United States,
The obvious and fatal defect in this contention, and an apparent fact appellant fails to recognize, is that it is premised entirely upon the proposition that the allegations set forth in his brief are true and that counsel was apprised of the prior inconsistent statements allegedly made by Manis to the prospective witnesses, as therein set forth. However, we find no reference to any such alleged facts in the record, and beyond that record this court cannot concern itself. There is absolutely no indication in the record that defense counsel had any knowledge of the alleged inconsistent statements made by Manis. Accordingly, this argument fails. Jackson v. United States, supra.
We have carefully examined the pertinent portions- of the record. Betty Kinder, on direct examination by defense counsel did testify that Manis had made certain statements to her that were inconsistent with his trial testimony. During cross-examination of Manis the following question was asked and answer given (Tr. 51):
“Q. Now, let me ask you this finally. Have you ever claimed ownership yourself of this car, not saying it was your sister’s ear, but have you ever said, ‘It is my car, I am buying it from my sister,’ or words to that effect?
A. No.”
Betty Kinder, on direct examination testified as follows (Tr. 78-79) :
“Q. What did you know about the car?
A. What did I know? I just know the ear belonged between the two boys, I don’t know whose it was.
Q. Did you ever make any inquiry as to—
A. No, I didn’t ask any questions. He did tell me that the car belonged to him.
Q. Who?
A. Glenn (Manis) * * *”
No objections were made to the foregoing questions, nor was there a motion to strike the answers. Mrs. Kinder further testified on direct examination as follows (Tr. 83):
“Q. Mrs. Kinder, whenever you heard anything about the Chrysler, who was it that told you about it ?
A. Glenn did.
Q. Did he tell you that—
A. He asked me how did I like his new car.”
To the foregoing questions and answers the Government counsel objected on the ground of hearsay and the trial court stated: “Yes; she can’t repeat any conversation she had with somebody else other than the defendant.” However, we note that the answers were not stricken. Part of Mrs. Kinder’s testimony on direct examination concerning a trip she took to Oklahoma with her husband and Manis, after the latter’s release from jail, for the purpose of obtaining bond for Tanner, is as follows (Tr. 82):
“Q. Where did you take him in Oklahoma ?
A. Well, I don’t know the first place where we went to, but it was on a country road way back in the woods, to my notion, and as we turned off the road there was — I don’t know how far we drove on this gravel road, but there was a big farm house and a barn there and he told me that is where he kept that car for two days.”
Government counsel again objected on the ground of hearsay, and the court stated: “Don’t repeat the conversation,
It may be that the admonitions of the court that Mrs. Kinder refrain from repeating conversations had with persons other than the appellant resulted in defense counsel not asking specific impeachment questions. However, in the absence of any questions, the response to which would reasonably be anticipated to be inconsistent with the previous testimony of Manis, and thus support an attack on his credibility, and in the absence of an offer of proof which would inform the court of the nature of the proffered testimony, there was nothing before the court which would justify the exercise of its discretion as suggested by the appellant. We find nothing in the record to support appellant’s claim of “clear error” on the part of the trial court in this regard.
In United States v. Peckham,
“In the first place it must be observed that, while the Federal Rules of Civil Procedure, rule 43(e), 28 U.S.C.A., contain a provision for offers of proof when testimony is excluded, there is no corresponding provision in the Federal Rules of Criminal Procedure, 18 U. S.C.A. But, be that as it may, a proffer of proof is proper and appropriate in order to make a record as to what examining counsel expects to elicit from the witness, if the witness were permitted to answer the question. Examining counsel can do so, however, only in connection with the direct examination of his own witnesses.”
Also see: Frisone v. United States,
With regard to the testimony of William A. Tanner, the father of appellant, the record reveals that all questions asked of him on direct and redirect examination were answered without objection. In fact, on redirect examination, he was permitted to answer the following question (Tr. 76-77):
“Q. What did Mr. Manis say to you apart from saying the car had been stolen, that they changed the plates? Did he say anything else to the best of your recollection ?”
No objection to the question or motion to strike the answer was made by Government counsel.
Numerous additional “points of error” not specifically commented upon or herein discussed are set forth and argued in appellant’s pro se brief. We have carefully considered each of them and find them to be without merit.
We are convinced that the record in this case fails to support either of appellant’s contentions that the quality and character of representation he received from court-appointed counsel violated the required standard, or provides a basis for invoking the “plain error” rule. Rule 52(b), Federal Rules of Criminal Procedure, 18 U.S.C.A.
The judgment appealed from is
Affirmed.
Notes
. See general rule expressed in United States v. Malfetti,
. At the time of the trial, Rule 29(a) F.R.Crim.P. provided in part that “Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place”; however, it is apparent that the trial court considered the motion made as being one for judgment of acquittal, based on alleged insufficiency of the Government’s evidence.
. Tanner liad a criminal record of several prior felony convictions.