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United States v. Follette

United States Court of Appeals, Second Circuit
Jul 14, 1966
364 F.2d 305 (2d Cir. 1966)

Summary

holding that decision to consolidate charges for trial does not, in and of itself, raise an issue of constitutional dimension

Summary of this case from Hernandez v. Conway

Opinion

No. 439, Docket 30166.

Argued June 15, 1966.

Decided July 14, 1966.

Anthony L. Fletcher, New York City (Anthony F. Marra, New York City, on the brief), for appellant.

Barry Mahoney, Asst. Atty. Gen. of the State of New York (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Albert O. Marston, Asst. Atty. Gen., on the brief), for appellee.

Before HAYS, ANDERSON and FEINBERG, Circuit Judges.


After a consolidated trial of complaints made by three different persons involving acts committed at different times, appellant Evans was convicted, in the former Court of General Sessions of New York County, of two counts of robbery, two counts of sodomy, three counts of assault with intent to commit sodomy and two counts of assault with intent to commit robbery. Appellant now claims that his detention is unconstitutional because the due process clause of the Fourteenth Amendment requires separate trials in cases where the crimes charged were of such a sordid nature that allowing the jury to hear evidence as to all acts might prejudice them when considering the specific complaint of each victim.

Section 279 of the New York Code of Criminal Procedure allows for the consolidation of charges of the "same or a similar character," at the discretion of the trial judge. Compare Rule 8(a) of the Federal Rules of Criminal Procedure. The trial judge charged the jury:

"each count is to be taken as a separate and distinct case; you decide each matter as you wish, but you cannot carry over the testimony from one complainant to another. They are not related in any manner whatsoever. * * *"

We must assume that the jury followed these instructions. See Delli Paoli v. United States, 352 U.S. 232, 242, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957); Opper v. United States, 348 U.S. 84, 94-95, 75 S.Ct. 158, 99 L.Ed. 101 (1954).

At most we are presented with an abuse of discretion by a state trial judge in granting the motion for consolidation. Compare United States v. Lotsch, 102 F.2d 35 (2d Cir.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L. Ed. 1500 (1939) with Note, Joint and Single Trials Under Rules 8 and 14 of the Federal Rules of Criminal Procedure, 74 Yale L.J. 553, 556-60 (1965). Appellant has cited no case which indicates that this is an issue of constitutional dimensions. Neither United States ex rel. Scoleri v. Banmiller, 310 F.2d 720 (3d Cir. 1962), cert. denied, 374 U.S. 828, 83 S.Ct. 1866, 10 L.Ed.2d 1051 (1963), which concerned the wholly unrelated question of a unitary trial of the issues of guilt and penalty pursuant to a statutory mandate, nor any of the other cases cited by appellant, hold that joinder in such a situation is constitutionally invalid.

The court wishes to express to Anthony L. Fletcher its gratitude for his conscientious and able handling of this appeal.

Affirmed.


Summaries of

United States v. Follette

United States Court of Appeals, Second Circuit
Jul 14, 1966
364 F.2d 305 (2d Cir. 1966)

holding that decision to consolidate charges for trial does not, in and of itself, raise an issue of constitutional dimension

Summary of this case from Hernandez v. Conway

In United States v. Follette, 364 F.2d 305 (2nd Cir. 1966), cert. denied, 385 U.S. 1016 (1967), a habeas petitioner contended that he had been tried on complaints of three different persons for acts committed at different times for two counts of robbery, two counts of sodomy, three counts of assault with intent to commit sodomy and two counts of assault with intent to commit robbery.

Summary of this case from Corbett v. Bordenkircher
Case details for

United States v. Follette

Case Details

Full title:UNITED STATES of America ex rel. William Lee EVANS, Petitioner-Appellant…

Court:United States Court of Appeals, Second Circuit

Date published: Jul 14, 1966

Citations

364 F.2d 305 (2d Cir. 1966)

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