James A. Richards v. United States , 275 F.2d 655 ( 1960 )

WILBUR K. MILLER, Circuit Judge.

Armed with a search warrant, police officers and Federal narcotic agents searched the appellant’s premises on the third floor of a small apartment house. Across the hall from the appellant’s apartment, they found a large quantity of marihuana in an unlocked trunk which was in a locked closet, the key to which they obtained from him. When the officers then told Richards and his wife they were both charged with violating the Marihuana Tax Act, that they were entitled to counsel and a hearing, and that any statement they made might be used against them, Richards said, “What are you charging my wife for; everything in that closet is mine; and the marihuana, the trunk, and everything, is all mine.” ¹ He warned his wife not to answer any questions. Several of the officers testified they heard Richards make these statements.

At the trial, Richards denied confessing to the officers, and disclaimed ownership or knowledge of the marihuana. He claimed that, a short time before the search, he had lent the trunk to Joseph F. Miller for the purpose of storing clothing belonging to Miller’s “girl friend,” and had allowed Miller to keep the trunk in the closet, to which he [Richards] had given him a key.² Having made out its case in chief, the prosecution chose not tp call Miller to rebut the alleged loan of the trunk to him, apparently confident the jury would find Richards guilty in spite of the repudiation of his confession and his testimony that he had lent the trunk to another.

Choosing to accept the evidence of appellant’s guilt, despite his testimony that another had equal opportunity to place the marihuana in the closet, the jury found him guilty as charged. Richards states, as the sole ground of his appeal, that

“* * * [T] he trial court’s instruction to the jury and rejection of a requested instruction erroneously preclude[d] the jury from drawing an inference adverse to the government from its unexplained failure to produce as a witness the paid police informer who had informed the police of the whereabouts of the marihuana and who, according to corroborated defense testimony, must have himself concealed the marihuana where it was found unbeknownst to the defendant.”

Miller was a special employee of the Metropolitan Police whose affidavit was one of the grounds for. the search warrant under which the officers entered Richards’ residence. In the affidavit he said he had recently purchased marihuana from Richards at his apartment and had seen that it was kept in the hall closet. Miller was not present at the time of the search and so could have shed no light on the events of that evening. The testimony of Miller was therefore not essential to the case for the prosecution; but it was important to the appellant’s attempt to establish that the trunk had been lent to him. It might well be said, consequently, that Richards’ failure to call Miller as his witness led to the inference that his testimony would have been unfavorable to the defense.

Richards not only made no effort to obtain Miller’s attendance as a witness; he did not even move that the Government be required to produce him. The appellant was content to ask for the following instruction:

“The jury is instructed, as a matter of law, that any witness material to the case and who is available to be called by either side or party in this case, and such witness is not called to testify, then the jury may infer that the failure to call such witness is indicitive [sic] that his testimony would have been unfavorable to the side or party failing to call such witness.”

The trial court rejected the foregoing, but instructed the jury in that respect as follows:

“There is still another rule of law that if either party of [sic] the Government or the defense has it peculiarly within his power to produce a witness whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony adduced would be unfavorable.

“However, there is no such presumption where the Government or defense fails to put on a stand a witness not deemed necessary to its case who might conceivably have given testimony favorable to that particular side.”

Although neither Richards nor his counsel claimed at the trial that Miller had “framed” him, the appellant now complains because the Government did not produce Miller to rebut his story of the loan of the trunk; and reasons that, from the prosecution’s failure to do so, and from the fact that Miller had told the police where the marihuana would be found, it must be inferred that Miller himself placed it in the trunk, “unbeknownst” to him. He argues it was error to reject the missing witness instruction offered by him and, while he concedes the first paragraph of the court’s charge on that subject was correct under Graves v. United States,³ he says the second paragraph of the quoted portion of the charge nullified the first paragraph. This, he says, prevented the jury from drawing the inference that Miller was the guilty party, and so constituted prejudicial error.

But Richards did not testify he had given Miller exclusive control of the closet. He himself had a key and therefore had continuously had access to the closet. Nor did Richards expressly charge Miller with possession, ownership or even knowledge of the marihuana; at most, his testimony was to the effect that several days before the search Miller had had the opportunity to put it in the trunk. So, the jury could have believed Richards’ story and still have found him guilty because he had a key to the closet and because of the officers’ testimony that he admitted ownership of the marihuana.

If in fact it was peculiarly within the power of the Government to produce Miller and if from its failure to produce him or to explain his absence, it must be inferred his testimony would have been unfavorable to the Government, the inference is only that Miller would have confirmed Richards’ testimony; that he would have said he borrowed the trunk and the use of the closet. It is not to be inferred that Miller would have gone further than Richards did, and would have incriminated himself. As we suggested earlier in this opinion, the jury might have accepted Richards’ testimony concerning the loan of the trunk, and might nevertheless have consistently found him guilty on the basis of ample evidence which did not conflict with and was not controverted by what the appellant said about lending the trunk. This would still be true, if Miller had testified and had confirmed the loan arrangement. So, even if the trial court erred in rejecting appellant’s missing witness instruction and in charging as it did, no prejudice resulted.

Apart from that, however, we hold the instruction offered by appellant was incorrect and that the court’s charge as to a missing witness was not improper. Moreover, appellant made no objection to the charge as given. Even so, we have considered his argument with respect thereto. In the second paragraph of the portion of the charge quoted above, the trial judge was simply saying a party does not incur the consequence of the absent witness rule merely because he fails to put on the stand a witness not deemed necessary to his case; that selectivity may be used to avoid offering evidence which would be cumulative or is thought unnecessary to establish the proposition for which he contends. Here the Government stood on the ground that Richards possessed the contraband. Its ease had to succeed or fall as the jury might resolve that issue.

In our view, therefore, there was no occasion to give a missing witness instruction and, in giving it, the trial judge treated Richards more favorably than he deserved. Miller could not have elucidated the transaction as far as the case in chief was concerned; and the inference that he would have said he borrowed the trunk would not have “elucidated” that alleged transaction — which was already manifest from Richards’ testimony.

More important, however, is the fact that it was not “peculiarly within the power” of the Government to produce Miller. He was well known to Richards, and was equally available to him. Shurman v. United States, 5 Cir., 1956, 233 F.2d 272. The cases cited by the appellant do not impel us to hold that a paid informer, occasionally employed by the police, is an employee of the Government or that he is to be held “peculiarly within” its power to produce or peculiarly under its influence when, as here, his identity and his whereabouts were known to the appellant.

As noted, Miller was not present when the search was made and could have added nothing to what was said by those who were present. The Government had only the burden of establishing beyond a reasonable doubt every element of the offense charged; it was not required to go further and rebut defense testimony which it thought it need not refute. The Government was entitled to consider, as it clearly did, that the issue turned on credibility, which is singularly a matter for the jury’s consideration and determination. In such circumstances the Government’s failure to call Miller or to explain his absence cannot help the appellant. His attack on the judge’s charge, made for the first time on appeal, must fall. We find no error. Affirmed.

1 . Richards did not suggest to the officers that Joseph F. Miller, whom we shall identify hereinafter, had or might have placed the marihuana in the trunk. He did not even mention Miller’s name.

2 . Attempting to substantiate his story, Richards called two witnesses:

(a) his. friend Schermerhorn, who testified that a week or so before the search he was present when Miller came to Richards’ apartment to borrow the trunk. He said that later at a restaurant Richards gave certain keys to Miller, who then went out but shortly came back and returned the keys to Richards.

(b) his friend Drago, who testified that on a certain occasion Miller came to Richards’ apartment and offered to give him a raincoat which was too small for him. Miller then left the apartment but soon returned and gave Richards a raincoat. Drago did not know where he had gone to get the coat.

3 . 1893, 150 U.S. 118, 1 S.Ct. 40, 3T L. Ed. 1021.