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United States v. Mitchell

decided: June 11, 1970.

UNITED STATES OF AMERICA
v.
WALLACE MELVIN MITCHELL, PAUL JOHN FORREST, EDWARD JOHN KERNS, WILLIAM EARL ZIEFEL, EDWARD JOHN KERNS, APPELLANT



Aldisert and Adams, Circuit Judges, and Higginbotham, District Judge.

Author: Adams

Opinion OF THE COURT

ADAMS, Circuit Judge.

Appellant, Edward Kerns, and three other men were indicted for the robbery of a federally-insured bank in violation of 18 U.S.C. ยง 2113(d). The three co-defendants, Wallace Mitchell, Paul Forrest and Earl Ziefel, pleaded guilty. Kerns pleaded not guilty, and was tried by a jury before the Honorable Michael H. Sheridan.

The bank robbery occurred on June 28, 1968. The government's evidence at trial established that Kerns and two of the co-defendants escaped from the state prison in Huntington, Pennsylvania, on June 21, 1968, and that on June 25th, Kerns was seen in a stolen automobile. At trial, an eye-witness identified Kerns and the three co-defendants as the men who, on the morning of the bank robbery, held up a hardware store from which guns and ammunition were taken. Two bank cashiers positively identified Kerns as one of the participants in the armed bank robbery. There was testimony that after the bank robbery Kerns and the co-defendants were in an automobile which was pursued by a police cruiser and that a gun battle ensued. Kerns admitted he was in the car, but denied he fired any shots. Kerns was also identified with his co-defendants as one of the men who, after the gun battle, held hostages at a private home that was surrounded by police. At the conclusion of a three-day trial, on November 27, 1968, the jury returned a verdict of guilty against Kerns who was thereafter sentenced to a term in prison.

In this appeal Kerns alleges several trial errors which he contends constitute grounds for reversal of the conviction: (1) prejudicial remarks and improper cross examination of Kerns by the prosecution, (2) the refusal of the trial judge to grant his request to sequester the witnesses, and (3) the presence of the co-defendants in the courtroom during trial. In a pro se brief, Kerns also alleges ineffective assistance of counsel.*fn1

Kerns was the sole witness for the defense. During cross examination, after Kerns was questioned about the chase by the police car and the gun battle surrounding it, the prosecution sought to impeach the credibility of Kerns by use of his prior convictions. The following colloquy resulted after Kerns denied firing at the pursuers:

"Q. You are not a man unfamiliar with firearms, are you, Mr. Kerns?

A. No, I am not.

Q. You are not a man unfamiliar with firing at other human beings, are you -- are you?

A. I haven't fired at anybody.

Q. You have been convicted of it, haven't you?

A. That is true, sir.

Q. Assault with intent ...


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