Leroy Shorter, Also Known as Roy Lee Shorter v. United States , 412 F.2d 428 ( 1969 )

JAMES M. CARTER, Circuit Judge.

Appellant, Leroy Shorter, was found guilty after a jury trial of armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d), and he now appeals. We Affirm.

The appeal presents the following questions :

1. Is evidence of flight admissible as an inference of guilt in the absence of a foundation connecting the flight to the offense charged?

2. Should the district judge have exercised his inherent discretion to exclude proof of prior felony convictions offered for impeachment purposes by “balancing the factors” concerning them?

3. Does the rationale of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) ¹ bar the use of felony convictions offered for impeachment purposes absent a clear showing that the convictions were not obtained in violation of the rule in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963)?

On June 20, 1967, appellant and another man robbed the Hibernia Bank in San Francisco. Appellant was armed with a double barrelled sawed off shotgun; he threatened to kill the assistant manager of the bank, and he took over $10,000 from several tellers at gun point. In the process of collecting the money, he dropped a paper sack which was later retrieved by the police. Appellant was identified on the basis of his fingerprint which was found on the paper sack, and a warrant was issued for his arrest.

On July 11, 1967, two Federal officers in an automobile, holding the warrant, recognized appellant in another automobile. The officers stopped their vehicle alongside appellant’s vehicle, which had also come to a stop. One of the officers, after rolling down a window of his vehicle, held up identifying credentials and said, “FBI.” Appellant saw and heard the officer. As the. officer started to get out of his car, appellant sped away, and the officers followed in hot pursuit. After a high speed chase of several blocks, appellant stopped his vehicle, jumped out, leaped a five foot fence and disappeared from the officers’ view. Some twenty minutes later, the officers captured him hiding in bushes in a nearby park. The next day a line-up was conducted in which appellant, represented by counsel, appeared; two tellers identified appellant as the man in the bank with the shotgun.

On September 18, 1967, the trial below was commenced. The two tellers again positively identified appellant; evidence of appellant’s flight which preceded his capture and arrest was introduced over his objection; and evidence of appellant’s fingerprint on the paper sack was introduced. Following the conclusion of the government’s case-in-chief, appellant’s counsel, in response to the trial judge’s inquiry, advised the court that he intended to call appellant to the witness stand. The government counsel then appraised the court of his intention to inquire of appellant, should he take the stand, whether he had ever been convicted of a felony, and produced for appellant’s inspection two certified and exemplified copies of felony judgments of conviction in which Leroy Shorter was named as the defendant; the judgments did not show that the defendant was represented by counsel or had validly waived counsel. Appellant admitted the convictions pertained to him, but asked the court to rule in advance as to whether the convictions would be admissible. The court indicated that it believed the rule in this circuit favored the admissibility of the convictions, and the court then declined appellant’s invitation to consider applying the rule laid down in the District of Columbia Circuit in Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965), to the effect that the trial court should exercise its discretion in ruling on the admissibility of prior convictions. Appellant thereafter took the witness stand and admitted upon examination by his own counsel, that he had been previously twice convicted of felony violations.

I.

Appellant contends the evidence of his flight was inadmissible since there was no foundation connecting the flight to the offense charged; he mainly relies on Embree v. United States, 320 F.2d 666 (9 Cir. 1963).²

The evidence of flight after a crime has been committed, whether from the scene or at a later time, is admissible since such evidence may tend to prove the defendant’s consciousness of guilt. The probative value, if any, of the evidence of flight will depend upon all the facts and circumstances in evidence in the case and is a question of fact for the jury. Rossetti v. United States, 315 F.2d 86, 87 (9 Cir.), cert. denied, 375 U.S. 814, 84 S.Ct. 45, 11 L.Ed.2d 49 (1963); D’Argento v. United States, 353 F.2d 327, 333 (9 Cir. 1965), cert. denied, 384 U.S. 963, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966).

In Embree, supra, the court merely held that evidence of flight did not have sufficient probative value in that ease to amount to an admission of guilt where there was no other evidence of defendant’s guilt. Embree does not stand for the proposition that evidence of flight shall not be admitted unless the government, as a condition of admissibility, first lays a foundation that the defendant knew he was being sought for the particular offense charged. Moreover, in the case at bar, there was ample evidence to indicate that appellant did know he was being sought for the bank robbery. We therefore hold appellant’s contention to be without merit.

II.

Appellant contends the court should have exercised its discretion to exclude evidence of his prior felony convictions under the rule of Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). On the facts of this case, the trial court never actually ruled on this point because testimony regarding the convictions had not as yet been solicited at the time the question of admissibility was raised. In addition, this circuit has not held it reversible error for a district judge to fail to adhere to the Luck rule; the latest cases are Burg v. United States, 406 F.2d 235, 237 (9 Cir. 1969),³ and United States v. Allison, (9 Cir. June 17, 1919). This circuit has not adopted the Luck rule; the latest case is Burg v. United States, 406 F.2d 235, 237 (9 Cir. 1969).³ Appellant’s contention is therefore without merit.

III.

Appellant contends his conviction must be reversed because the rationale of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) bars the use of felony convictions for impeachment when those convictions were obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963), which guaranteed the right to counsel to defendants in state felony proceedings. Burgett involved the prosecution’s use of prior convictions, obtained without counsel, to enhance punishment under the Texas recidivist statute; the Court stated (389 U.S. at 115, 88 S.Ct. at 262): “To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526) is to erode tlie principle of that case. * * * The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial * *

We need not now decide whether the prosecution’s use of prior convictions obtained without counsel for impeachment purposes violates the rationale of Burgett. In the case at bar the prior convictions were not offered by the prosecutor; they were offered by the testimony of appellant himself. While the prosecutor stated that he intended to offer the priors if appellant took the stand and the court indicated it would admit them if offered, the prosecutor never had a chance either to do so or to change his mind. Appellant did not wait to see if the priors would in fact be offered and then object to them;⁴ rather, he offered the evidence himself as a matter of trial strategy, probably to soften the anticipated blow in the eyes of the jury. Having adopted this strategy, which appeared to be in his best interest, he cannot now be heard to complain that his own act of offering such evidence violated his constitutional rights. We therefore hold appellant’s contention to be without merit.

The judgment of the district court is Affirmed.

1 . Burgett was decided November 13, 1967. The case at bar went to the jury on September 20, 1967.

2 . Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), relied upon by appellant, involved only the question as to whether the defendant’s flight “justified an inference of guilt sufficient to generate probable cause for his arrest.” However, footnote No. 10 (p. 483, 83 S.Ct. 407) indicated the Supreme Court bad reservations about flight evidence generally.

3 . In Burg as Judge Hamley points out, Judge Madden’s opinion demonstrated there was compliance with the “orthodox” rule, and Judge Ely’s concurrence demonstrated the trial court did “balance the factors” and thus exercised its discretion.

4 . Trial courts often hear matters out of the presence of the jury and a record of counsel’s objections are made and overruled in advance of the time the particular problem arises in the trial. However, when the point is reached in the trial where the particular evidence is presented, the better practice is to make an objection “on the grounds heretofore stated.” Here there was no stipulation that objection need not be made when the evidence was offered. Moreover, it was the appellant and not the government who offered the prior convictions.