Peter J. Pallotta v. United States, 404 F.2d 1035, 1st Cir. (1968)
Peter J. Pallotta v. United States, 404 F.2d 1035, 1st Cir. (1968)
2d 1035
The first error alleged by appellant is the trial court's refusal to admit into
evidence a newspaper article on the bank robbery authored by Mrs. Terry
Milton, the government's eyewitness. The court excluded the article on the
grounds that 'A newspaper is hearsay'. The court may have been misled by the
fact that there were two newspaper accounts in existence-- one by Mrs. Milton
and one by another reporter. The latter article was clearly unusable for any
purpose but such was not the case with Mrs. Milton's article. There was no
question of authentication since the article was identified and its authorship
admitted by Mrs. Milton during the course of her testimony.
Mrs. Milton was the government's only eyewitness and it is fair to say that her
testimony was a critical element in the government's proof. While the
differences between her newspaper account and her testimony at the trial were
not so substantial as appellant claims (and indeed certain of these differences
are unfavorable to appellant), the appellant was entitled to have the jury
evaluate Mrs. Milton's testimony in the light of cross-examination based on her
account, written at a time shortly after the commission of the crime.
While the newspaper account was clearly usable for purposes of impeachment,
it was not admissible as an exhibit. The colloquy and offer of proof were
consistent with an effort to impeach through cross-examination on the basis of
the account but no clear statement to this effect was made. It is possible that the
court believed that the newspaper article was being offered as an exhibit.
Indeed, much of appellant's brief on this point proceeds on the theory that the
document was admissible. Since, however, there must be a new trial for other
reasons, we do not now say that the court's laconic ruling was reversible error.
II-- JENCKS ACT STATEMENTS
On the other hand, if Jencks Act statements are used in cross-examination with
no indication how they came into the hands of defense counsel, the prosecution
runs the risk that the jury will infer that it has concealed important information.
See United States v. Gardin, 382 F.2d 601 (2d Cir. 1967).
10
At the trial the government called FBI agent Lucksted to testify concerning an
interview conducted with the appellant on June 26, 1967, in Paterson, New
Jersey. Appellant contends that it was error to admit Lucksted's testimony
because appellant was not apprised of his constitutional rights as required by
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d
974 (1965), and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d
977 (1964). When defense counsel objected on voir dire to the admission of
this testimony,2 the trial court ruled that the testimony was admissible but the
reasons given were at best ambiguous.3
11
While the court found that appellant was warned of his constitutional rights, it
also seemed to say that the warnings were not required. Moreover, it seemed to
say that if defendant were not in a situation requiring Miranda warnings,
something less would do. This is not so. Miranda supersedes Escobedo so that
if Miranda warnings are required there is no doubt that an accused is entitled to
be told that counsel may be furnished him if he so desires and is unable to
afford counsel. Finally, we cannot be sure that the court's finding that defendant
was not 'in custody' reflected consideration of the larger Miranda criteria of
one's being in custody or 'otherwise deprived of his freedom of action in any
significant way.' 384 U.S. at 444, 86 S.Ct. at 1612. We do not say that the
interview in this case was custodial in nature. We say only that the record is so
unclear that we cannot be sure that the trial court gave due consideration to the
question of the applicability of Miranda.
12
Assuming that the interview was custodial in nature, it is arguable that the trial
court found that appellant was adequately informed of his constitutional rights.4
However, even assuming that appellant was so informed, we believe that,
nothing more appearing, it was error to admit that part of the testimony relating
to appellant's response to questioning. In Miranda the Supreme Court stated
that:
13
14
In this case appellant refused to sign a waiver of rights, and the trial court made
no finding on the question of an intelligent waiver.5
15
At any subsequent trial of this cause, clear findings must be made as to the
following points: (1) was the interview custodial in nature thereby requiring
Miranda warnings; (2) assuming that the interview amounted to custodial
interrogation, was appellant apprised of his constitutional rights; and (3) if he
was so informed, was there a waiver of those rights?
IV-- INSTRUCTIONS
16
Appellant contends that the court erred in refusing his request that certain
instructions be given to the jury. Specifically, appellant complains that the
court refused to instruct: (1) that the defendant in a criminal case is under no
obligation to offer evidence; (2) that each member of the jury must decide the
case for himself; (3) on the credibility of testimony; and (4) on 'the vagaries' of
eyewitness' testimony.
17
18
19
20
21
Appellant was indicted specifically for violation of 18 U.S.C. 2113(a) and (d)
(1964)
We note that appellant did not object to Lucksted's testimony at the trial but in
view of his extensive objections on voir dire we have concluded that the issue
may be raised in this appeal
See n. 3, supra
We can well appreciate the court's confusion on this issue-- confusion that was
contributed to by both defense counsel and the United States Attorney. For
example, on the question of waiver the United States Attorney offered the
following statement:
'There is a recent Supreme Court-- there is a recent decision, Your Honor, and
the name of it passes me by at this point, but the basis of the determination is
that a defendant does not have to intelligently waive his rights.'