Floyd Leroy Laughlin, Appellant, v. United States of America, Appellee, 411 F.2d 1224 (9th Cir. 1969)

In the Court below the appellant was convicted of the crime of rape and sentenced to 25 years imprisonment, from which he appealed to this Court, and the case was on that appeal affirmed in Laughlin v. United States, 1966, 368 F.2d 558.

Following that appeal, appellant (petitioner and movant below) filed a § 2255 motion, and from its denial he now prosecutes his present appeal in which he contends that at his jury trial on the merits the Court committed the following alleged errors:

First, appellant contends his Fifth Amendment right not to be a witness against himself was violated by the FBI agent's testimony at the trial that appellant remained silent when previously accused of sexually assaulting the victim, but appellant's experienced and able attorney did not see fit to object to that evidence and thereby waived the presently claimed error of its admission into evidence (Trial Tr. 129; Tr. 65). Osborne v. United States, 9 Cir., 1967, 371 F.2d 913. The more recent case of Fowle v. United States, 410 F.2d 48, decided by this Court on April 14, 1969, has been considered by us, but believing that on its facts it is materially different from this case, we do not apply the Fowle case rule here.

Next, appellant asserts in effect that the Trial Court erred in admitting evidence that when shown six photographs face down, the victim turned them over, examined them and identified one of them as a picture of her assailant (Plaintiff's Exh. 10). Later in a pretrial line up and again during the trial, the victim identified that same person, now the appellant, as her assailant, thus unmistakably indicating the correctness of the victim's verification of the subject of the photograph as her assailant. We find no error in the admission into evidence of the photograph, Plaintiff's Exh. 10, nor in her identification at trial of appellant as her assailant. Hill v. United States, 9 Cir., 1968, 401 F.2d 995; Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247.

There were other error assignments, but we have carefully considered the record, and find no merit in them.

We affirm.