Rayford Lavaughn Thompson, Appellant, v. United States of America, Appellee, 372 F.2d 826 (5th Cir. 1967)

Appellant was convicted by jury verdict on both counts of a two-count indictment charging him with interstate transportation and sale of a stolen motor vehicle in violation of 18 U.S.C. §§ 2312-2313.

On this appeal, appellant advances numerous points of error, only two of which merit discussion and none of which necessitates reversal of the conviction.

Appellant strongly urges that the trial court erred in refusing to allow his counsel on redirect examination to introduce evidence of a previous acquittal in a similar case involving a stolen vehicle after the Government had allegedly elicited facts related to the prior criminal proceedings on cross-examination. This contention might conceivably have merit were it not for the fact that the record contains no indication whatsoever that the Government brought out any evidence concerning the former prosecution in the course of its cross-examination of appellant. It is true that appellant was questioned concerning the alleged purchase of a 1960 Chevrolet from one Farris approximately one month after his alleged purchase from the same Farris of the 1958 Chevrolet involved in the instant prosecution. It is further true that appellant had been acquitted by jury verdict of the charges relating to the 1960 Chevrolet some three months prior to the trial of the instant case.¹  As the trial court reasoned, however, the mere fact that previous charges had been brought against appellant involving the 1960 Chevrolet did not summarily preclude all inquiry into the alleged transactions with Farris, transactions upon which appellant placed primary reliance in refutation of the Government's contentions that appellant had knowledge that the vehicles had been stolen.²  A close study of the entire testimony on cross-examination convinces us that neither Government counsel nor appellant made reference to any fact from which the jury might have inferred that appellant had previously been subject to prosecution involving the 1960 Chevrolet. It is therefore reasonable to conclude that the jury would have never had reason to suspect that appellant had been involved in prior criminal proceedings were it not for the fact that appellant's own counsel on redirect examination inquired of appellant whether he had been previously tried on charges involving the 1960 Chevrolet.³  The prosecution immediately entered an objection, which was sustained by the trial court together with appropriate instructions to the jury to disregard completely the question and answer in its deliberations of the case.⁴  It is sufficient to say that appellant cannot under these circumstances successfully challenge the validity of his conviction by urging that the jury was prejudiced by evidence of the prior criminal proceeding brought to its attention by appellant's own counsel, nor by urging that the court then erred in rejecting counsel's further attempt to introduce evidence of the prior acquittal.

Appellant further asserts that the trial court erred in refusing to subpoena appellant's daughter as a defense witness pursuant to Rule 17(b),⁵  and in refusing to grant appellant a continuance during the trial to secure the attendance of such witness. The right afforded by Rule 17(b) to have a witness subpoenaed at government expense is not absolute. Such action is committed to the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless exceptional circumstances compel it. Taylor v. United States, 5th Cir. 1964, 329 F.2d 384, 386. Here, the court granted appellant's request to subpoena two other witnesses, and a study of the affidavit setting forth the testimony expected to be given by appellant's daughter reveals that such testimony would have merely been cumulative of that of appellant and the other two subpoenaed witnesses. Moreover, the trial judge in the instant controversy was the same who had conducted appellant's previous trial wherein he had, in fact, granted a request by appellant to subpoena this very witness. He was therefore familiar with the nature of the case as well as the materiality and probative force of the probable testimony,- thus placing him in a favorable position to properly evaluate the requests for subpoenaes in the instant controversy. Under these circumstances, we cannot say that appellant's cause was fatally prejudiced by the trial judge's refusal to subpoena this one witness. See Flanagan v. United States, 5th Cir. 1962, 308 F.2d 841, cert. denied, 1963, 374 U.S. 838, 83 S. Ct. 1889, 10 L. Ed. 2d 1059; Greenwell v. United States, 1963, 115 U.S.App.D.C. 44, 317 F.2d 108.

Having concluded that appellant's other numerous objections to the sufficiency of the charge and admissibility of evidence are likewise without merit, we therefore

Affirm.