Unpublished Disposition, 888 F.2d 130 (9th Cir. 1989)

MEMORANDUM^** 

Roger Wade Thornton appeals from the district court's judgment of conviction for attempted escape under 18 U.S.C. § 751(a). Thornton seeks reversal on the following grounds: (1) the district court erred in reading the indictment to the jury before the trial because it contained an allegation that Thornton was incarcerated for armed bank robbery and used a firearm in a violent felony; and (2) the district court erred in admitting into evidence copies of Thornton's federal conviction for armed bank robbery and his state conviction for aggravated assault. Thornton also appears to argue that he was prejudiced by acts of unfairness committed by the trial judge and his court-appointed advisory counsel. We affirm.

Prior to the start of the trial, the district court read the indictment to the jury. The indictment stated in pertinent part that Thornton was "lawfully confined and committed to the custody of the Attorney General or his authorized representative pursuant to Judgment and Commitment of the United States District Court upon conviction of Title 18, United States Code, Section 2113(a) (d) (armed bank robbery) and Section 924(c) (use of firearm in violent felony)." Thornton contends that the reading of the indictment containing a description of his prior convictions "severely impeach [ed] him, even though he never elected to testify on his own behalf." We review a district court's decision to read the indictment for an abuse of discretion. United States v. Polizzi, 500 F.2d 856, 876 (9th Cir. 1974), cert. denied, 419 U.S. 1120 (1975).

In United States v. Kim, 577 F.2d 473, 484 (9th Cir. 1978), the defendants claimed it was prejudicial error to read to the jury the entire indictment involving eighteen persons because only eight of them were jointly tried before the jury. We held that it was not an abuse of discretion for the entire indictment to be read to the jury during the government's opening statement. The defendants did not object to the reading of the indictment. Moreover, the court instructed the jury that the indictment did not constitute evidence for consideration in their deliberations. Id.

In the instant matter, Thornton did not object to the reading of the indictment. Furthermore, the government submitted jury instructions to be read prior to the presentation of evidence. The first instruction indicated that the indictment was to be read. It was not until midway through the trial that Thornton complained about the indictment being read. Treating his complaint to the judge as an inartful objection, it was untimely. In any event, the federal court conviction, which was the only conviction mentioned in the indictment, was properly admitted into evidence. See infra at 3-5. Moreover, the jury was instructed that the indictment "is not evidence of any kind against the accused and does not create any presumption or permit any inference of guilt." Cf. United States v. Charmley, 764 F.2d 675, 677 (9th Cir. 1985) ("Where evidence heard by the jury is later ruled inadmissible, a cautionary instruction is ordinarily sufficient to cure any alleged prejudice to the defendant"). It was not an abuse of discretion for the district court to read the indictment.

At trial the government sought to introduce the federal and state court judgments and convictions to establish that Thornton was legally committed to prison at the time of the escape. Alternatively, the government offered to stipulate that Thornton was legally in custody at the time of the attempted escape. At first Thornton had no objections to admitting the documents, if he was "allowed to explain." The court admitted the documents and Thornton asked if he was allowed to explain his side of the story regarding the underlying convictions. The court informed Thornton that the circumstances surrounding the underlying convictions were irrelevant. A long colloquy ensued in which the court explained that Thornton could stipulate that he was in lawful custody at the time of the alleged escape or, if not, the documents would be admitted. Thornton started to state he would stipulate when the government stated that it would not stipulate to the federal conviction because the government was required to prove the facts alleged in the indictment. The government, however, stated that it would stipulate to the state conviction. Thereafter the government changed its position and requested that proof of the state conviction be admitted. The court admitted both documents finding that they were legally admissible. Thornton made no further objection.

Thornton contends that the certified copies of his prior federal and state court convictions were erroneously admitted at the trial. We review a district court's decision to admit evidence for an abuse of discretion. United States v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987).

We have held that a copy of the judgment and conviction pursuant to which a defendant is in custody at the time of the attempted escape is admissible to establish the defendant's legal confinement. Bayless v. United States, 381 F.2d 67, 73 (9th Cir. 1967). Thornton relies on the Fifth Circuit's decision in United States v. Spletzer, 535 F.2d 950, 955-56 (5th Cir. 1976), in support of his contention that admission of proof of his prior conviction was error. In Spletzer, the Fifth Circuit held that it was error to admit a certified copy of the defendant's judgment and conviction in prosecution for escape because the defendant had filed a sworn admission prior to trial conceding that he had been convicted and confined. Id. at 955. The Fifth Circuit reasoned that "whatever slight cumulative probative value [could] be ascribed to the judgment of conviction of bank robbery was substantially outweighed by its danger of creating prejudice." Id. at 956 (footnote omitted).

In the instant matter, while it appears that Thornton at one point agreed to join in a stipulation that he was legally confined at the time of the alleged escape, ultimately, the government refused to join in the stipulation. The documents were admitted with no further comment or objection from Thornton. Thus, it appears that Thornton acquiesced in the court's decision to admit the copies of the judgments and convictions. In any event, unlike the circumstances in Spletzer, Thornton did not file an admission that he was lawfully convicted and confined. The district court admitted the documents because the government refused to join in a stipulation. The documentary proof of a prior federal conviction is admissible to prove the lawful nature of the confinement. Bayless, 381 F.2d at 73. Under these circumstances, it was not an abuse of discretion for the district court to admit the federal judgment and conviction.

Admission of the records of Thornton's state conviction for aggravated assault presents a more difficult question. The state conviction was not alleged in the indictment. Moreover, admission of the proof of the federal judgment and conviction established that Thornton was legally confined prior to the alleged escape. Under these circumstances, the proof of the state conviction was cumulative. Its probative value, if any, was slight. The possible prejudicial impact of proof of the state conviction outweighed its questionable probative value. Fed.R.Evid. 403. The district court abused its discretion in admitting the state court conviction.

The district court's error in admitting proof of the state conviction does not compel reversal unless it is more probable than not that its admission materially affected the verdict. United States v. Binder, 769 F.2d 595, 601-602 (9th Cir. 1985). In the instant matter, the evidence against Thornton was overwhelming. The officer's testimony established that Thornton was caught on top of the fence which surrounded the Federal Correctional Institution. He was apprehended just after he went over the inside fence. One of the gloves Thornton used had a blood stain corresponding to the puncture wound on the heel of Thornton's left hand. Thornton had a number of lacerations on his body from the barbed wire on the fence. Moreover, Thornton's only discernable defense was that it was difficult to escape because of the barbed wire. In addition, during his closing argument, Thornton told the jury that he was "climbing the board against the fence as opposed to standing on [it]." Admission of proof of the state court conviction was harmless error. Fed. R. Crim. P. 52(a).

Although represented by counsel on this appeal, Thornton filed a supplemental brief. In his separate pro se brief, Thornton argues that his advisory trial counsel was in "collusion with the prosecution to help expedite [the] case." He also contends that he was not allowed to tell his side of the story at the trial.

Thornton's claims are meritless. There is nothing in the record to indicate that his advisory attorney acted in collusion with the prosecution. In addition, the district court did not abuse its discretion in refusing to allow Thornton to inform the jury about prison conditions. The district court explained that the prison conditions were irrelevant to the crime of escape or any defense. Moreover, Thornton elected not to take the stand. He cannot now complain that he did not get to tell "his side of the story."

The judgment of the district court is AFFIRMED.