Eddie Odom v. United States

GRIFFIN B. BELL, Circuit Judge

(concurring specially):

Although I do concur in the majority opinion, an additional statement would appear in order from the standpoint of procedure. The testimony in question of Sergeant Johnson was stricken after an objection was lodged on the ground that it was not responsive. There was no objection based on the prejudicial nature of the statement. The District Court sustained the objection, ordered the testimony stricken, and, sua sponte, gave a cautionary instruction to the jury. There the matter rested; there was no motion for a mistrial. Thus the District Court accorded all relief requested and more. This means that the reversal can only be on the basis of the plain error rule.

In the following decisions cited by the majority, Conner v. United States, 5 Cir., 1963, 322 F.2d 647 ; McMillian v. United States, 5 Cir., 1966, 363 F.2d 165 ; and United States v. Clarke, 3 Cir., 1965, 343 F.2d 90 , the error was preserved by a timely motion for mistrial. See also Fahning v. United States, 5 Cir., 1962, 299 F.2d 579 , for the same procedural posture. On the other hand, in Boyd v. United States, 1891, 142 U.S. 450 , 12 S.Ct. 292 , 3 L.Ed. 1077 , also relied *861 on in the majority opinion, the situation was quite similar to the instant case. In that case there was an objection to the testimony, and a cautionary instruction in the jury charge. The Supreme Court, nevertheless, concluded that the testimony regarding unrelated crimes was prejudicial to the extent that a new trial was necessary. The majority opinion also relies on Helton v. United States, 5 Cir., 1955, 221 F.2d 338 . There the prejudicial testimony was stricken following an objection. No cautionary instruction was given and no motion for mistrial was made. This court was of the opinion that the prejudicial effect of the testimony could not have been removed by a cautionary instruction, and ordered a new trial. The plain error rule was not mentioned although it was implicit in the decision in view of the finding that the error was not harmless.

Rule 52, F.R.Crim.P., directs that harmless error be disregarded and that a plain error, affecting substantial rights, may be noticed although not brought to the attention of the trial court. The plain error test must be applied here since the error was not preserved. We have said that in determining plain error, “Each case stands upon its own peculiar facts and circumstances as to whether a defendant has been afforded a fair trial. * * * Whenever this Court is of the opinion that a defendant has been denied a fair trial, it must set aside the judgment of conviction.” Benham v. United States, 5 Cir., 1954, 215 F.2d 472, 474 . See also Helms v. United States, 5 Cir., 1964, 340 F.2d 15, 19 . Cf. Alexander v. United States, 5 Cir., 1965, 354 F.2d 59 ; and Mora v. United States, 5 Cir., 1951, 190 F.2d 749 .

Although this reversal will come as a considerable surprise to the District Court in view of the procedure there, I am satisfied that the testimony of Sergeant Johnson was prejudicial to the extent that it may have had substantial influence on the jury, or at least I am left in grave doubt as to the proposition. Koetteakos v. United States, 1946, 328 U.S. 750 , 66 S.Ct. 1238 , 90 L.Ed. 1557 . Thus, reversal is indicated and I concur.