*1 1395 update failure the search warrant does weapons explosives
not render the America, in- Appellee, UNITED STATES admissible. v. Jerry PRUETT, Appellant. Winford requirement plain
The last of the incriminating view doctrine is that the na No. 85-1732. of the immediately appar ture evidence be requirement ent. This is satisfied if there United Appeals, States Court of “probable is cause to the property Eighth associate Circuit. activity.” with criminal Texas v. [seized] 14, Submitted Jan. Brown, 730, 741-42, 22, April Decided 1535, 1543, (1983); 75 502 L.Ed.2d see Pajari, States v. United F.2d (8th Cir.1983). determining wheth met, requirement
er consid knowledge
er the collective of the officers
executing the searches. United States v.
Wright, (8th Cir.), 641 F.2d U.S. S.Ct. (1981);
L.Ed.2d 394 see also United States Johnston, (1st 784 F.2d Cir.
1986). Inspector Harp Since was familiar surrounding escape, facts she
could associate activity with criminal each during
item evidence observed house,
searches of the and thus this re
quirement has been satisfied.
Because the seizure evidence
admitted at trial plain was lawful under the doctrine,
view we affirm the district court’s suppress the motion to these
items. arguments
Newton raises four other (1)
appeal: his involuntary confession was
despite receipt his sepa- and waiver of two warnings; (2) sets of
rate Miranda
district court abused its discretion admit-
ting videotape lineup which deputy shеriff Newton identified as the car; (3) of the escape
driver the district
court abused its in excluding discretion Quintana
statements made to officials dur- negotiations;
ing evidence him
was insufficient to on all convict four
counts indictment. arguments have considered
We these them to merit.
find be without
Affirmed.
1396 district court for hearing a to deter- the materiality
mine of Nix’s intended testi- mony. remand,
Pursuant
to our
district
hearing
February
court conducted a
on
certifying
and
an order
1986
issued
to this
findings
upon
court its
made
those
based
proceedings. The district сourt described
testimony,
Nix’s
reaffirmed its earlier con-
clusion that Nix’s
was cumula-
jury
to the
to the
evidence
trial, and found that Pruett was not unfair-
ly prejudiced by the continuance’s denial.
record, including
After review of the entire
findings
court’s
the hear-
remand,
ing on
we now cоnclude that
it
prejudicial
deny
error to
Pruett’s mo-
a
tion for
continuance. We reverse and
remand to the district court for a
trial.
new
question
little
dis
There is
a
ruling
discretion in
on
trict court has wide
continuances,
for
and a court’s ex
motions
Delworth,
James
Asst. Federal Public
rarely
discretion
be over
ercise
will
Louis, Mo.,
Defender,
appellant.
for
St.
Little, 567
States v.
turned.
United
Cir.1977),
(8th
F.2d
Louis,
Rosen,
Atty.,
David
Asst. U.S.
St.
1608,
The record
shows that
which Nix had indicated
considering
he was
need for the
obtaining
weapon
asserted
for his
use.
wife’s
on the death of Nix’s
immedi
based
father
Nix’s
testimony,
intended
as the district
materiality
ately
the trial аnd the
indicates,
before
substantially
court’s order
Nix’s
to Pruett’s defense. Sud
similar to
account.
at-
*3
exigencies
den
and unforeseen circum
torney argued to the district court that
stances are facts that
in favor of a
militate
testimony
Nix’s
was material because it
Little, 567
continuance.
F.2d at
Not
Veasey’s
would corroborate
of
version
the
we believe
immedi
only do
that the death
facts
and enhance
credibility
the
of
ately
parent
trial of the
of one of
before
against
government’s
defense
the
the
two
dеfendant’s
material witnesses
possession.
case of
agree.
constructive
We
testify
exigency
to
is a
scheduled
sudden
or
difficult,
While it is
if
impossible,
not
to
circumstance,
this
unforeseen
but
quantify the effect an absent witness’s tes-
previously recognized
personаl
has
that
timony would have had on
jury’s
the
delib-
grounds
tragedy may
grant
be
a motion
to
erations,
note
that we are
Wyrick,
for a continuance.
Johnson
Cf.
here not
the absence
of an additional
1234,
(8th Cir.1981),
653 F.2d
cert.
given
witness when several others have
1149,
1013,
denied, 454 U.S.
S.Ct.
substantially similar testimоny, but with
(1982)(defense
L.Ed.2d
should
witness
of
only
the absence
the
to
party
other
the
in murder
testify
have been available to
who
Veasey’s
transaction
could corroborate
notice,
day’s
barring
less than a
trial on
exculpate
and
axio-
Pruett.
It is
tragedy).
dispositive
рersonal
While not
in
persuasion
art
matic that the
of
turns
often
determining whether a
should
continuance
on
Contrary
the skill
corroboration.
to
granted, we do not
that
believe
the district court’s
in-
evaluation of Nix’s
is one to
lightly
factor
dismissed.
tended
mere
cumulative or as
weighed
factor which
heavily
most
surplusage to the evidence already present-
in
the
court’s determination that
trial,
ed at
we believe that the fact that
appropriate
a continuance was
Nix’s
tracked
not
does
was whether Nix’s
matеrial
finding
defeat
rather
but
reinforces a
to Pruett’s defense. The record reveals
We
materiality.
believe that Nix’s testimo-
government’s
that the success' of the
case
ny
defense,
to
was crucial Pruett’s
and that
against
drawing
Pruett
in part
relied
on
an
it was error fоr the district
find
court to
presence
gun
inference
the
of a
on a
that it
not material.
apartment
table in Pruett’s
indicate
addition, although
no al
there is
Pruett’s dominion and
over that
control
government’s
legation
the
conduct
gun sufficient
to constitute construсtive
improper,
we also note that
there
weapon.
E.
1 Devitt
showing by
government
the
been no
that a
Blackmar, Federal
Practice and
Jury
& C.
adversely
affected
have
(3d
1977);
16.07
Instructions
ed.
Johnson
§
government’s prosecution
the
of this case.
States,
506 F.2d
n. 4
v. United
642-43
And
the facts of
although
this case
Cir.1974),
(8th
appear especially complex,
not
we find that
(ele
L.Ed.2d 659
the
the defendant
burden
must shoulder
possession).
ments
constructive
government’s
the
here to rebut
construc
Pruett’s defense was based on the testimo
possession case
cru
witnesses,
Nix,
when one of two
Veasey
ny of two
Gene
cial witnesses is unavailable militates in
apartment
had been at Pruett’s
who
granting
an extension
gun
favor
of time
day
discovery
in
before
Moreover,
timely
trial.
Pruett’s counsel
Veasey
home.
at trial
testified
court of Nix’s
gun
brought
owned the
he
informed the
absence
that he
and that
of it.
gun
day
to Pruett’s
before
soon as he learned
We do not believe
home the
discovery pursuant
an
these
gun’s
earlier
under
circumstances a lack
Nix, in
Veasey
diligence
between
due
was demonstrated when
discussion
resting
request
the trial
officers and a third officer who
Pruett’s counsel did
subpoena
intercept
testified,
cross-examination,
any
court to enforce
without
way
to his father’s
gun
question
operational.
that the
funeral,
governmеnt con-
for the
as counsel
arresting
Both of the
officers testified that
where the district
tends. This is not a case
made
he
Pruett
a statement after
was ar-
already granted one or more
court had
rested and after he had been read his Mi-
request,
continuanсes at the defendant’s
rights.
sepa-
Each officer testified
randa
Bernhardt,
see,
642 F.2d at
nor
e.g.,
rately
gun
he had
Pruett said
coun-
grounded
defense
was the motion
people
some
after him.”
“because
were
subpoena
potential
sel’s
failure to
own
12; 21;
cross-examination,
Upon
Tr.
witness, see,
v. DeCo-
e.g., United States
attorney
impeach
attempted
(8th Cir.1981)
teau,
648 F.2d
point,
officers’
on this
but met
curiam). Rather, Pruett’s counsel con-
(per
apparent
with little
success. Both officers
*4
court that Nix’s
sistently indicated to the
they
stated that
had no doubt that Pruett
testimony
necessary to corroborate
was
made the statement.
facts,
representa-
of the
Veasey’s account
It seems clear to me that the success of
by
testimony
tion that
borne out Nix’s
government’s
the
case resulted from the
hearing.
remand
at the
statement,
evidence of Pruett’s own
as tes-
herein,
light
described
In
of the factors
by
arresting
to
tified
both
officers.
of the district
we find it was an abuse
linchpin
statement
the
of
the
deny defendant’s mo-
court’s discretion to
government’s
сredibility
case and the
of
judgment
The
of
tion for a continuance.
the officers’
the focus of the
reversed, and the case
the district court is
prosecutor’s closing statement. This was
for
is remanded to the district court
a new
only
not a conviction
on an infеrence
based
trial.2
finding
gun
the
on a table in
drawn
apartment
suggested by
the
ROSS,
Judge, dissenting.
Circuit
on the
majority. This was a case built
my
I
In
the
respectfully dissent.
view
police
of two
officers who swore
majority
ignored
import
has
the clear
of
gun
he had the
under oath that Pruett said
and,
pays lip
in
the record
a decision that
people
him.
because some
were after
prescribed
service to our
standard of re-
Second,
agree
majori-
I
the
cannot
with
view,
judgment
of
substituted its
for that
ty’s re-balancing of the
factors or its
Little
position
court.
I take this
for
the district
that the district court’s denial of
conclusion
following
reasons.
the
two
Pruett’s motion constituted an abuse of
First,
my opinion,
majority
in
the
has
this court advised that
discretion.
Little
district court’s decision
reversed the
based
balancing
of thеse
evaluation
“[t]he
assumption
supported by
not
the
on an
factors, as well as other additional factors
majority
record. The
writes:
record
“[t]he
arise,
judge,
the district
that
rest with
govern-
the success of the
reveals
must
afforded a substantial
and he
be
agаinst
part
ment’s case
Pruett relied in
decisionmaking
of discretion in his
amount
drawing
presence
an inference from the
of
in
area of the law.”
somewhat cumulative and that some of would be
[sic] ways,
corroborated in other event. any feels,
The Court as a of this result
conversation, witness is an
indispensable the Defendant probability and that his in all Terry BEACH, Appellant, R. by will be covered thаt of other witness- es, and for this reason the motion for the BOWEN, Secretary Otis R. of Health continuance will be denied. Services,* Appellee. Human Tr. 2-3. No. 85-2004. A reading ruling fair of this reflects primary for the court’s basis Appeals, United States Court pre-trial understanding decision was its Eighth Circuit. that Nix’s would be cumulative. April Submitted appraisal There can be no doubt that this assess- correct. district court’s April Decided ment that it is borne cumulative Veasey’s out a review of trial subsequent testimony
and Nix’s the re- hearing. necessary
mand It is not to re- accounts,
peat majority their for even the
agrees testimony “was that Nix’s intended
substantially similar account.”
Ante at 1397.
* motion, Margaret accordingly, Otis R. Bowen succeeded M. Heck- dle court on its own substi- case, ler, originally appellee party appellee. Fed.R.App.P. tutes him as 43(c)(1). named Services, Secretary of Health Human