Opinion
No. 691-69.
December 24, 1970.
Glen S. Kelly, Asst. U.S. Atty., Kansas City, Kan. (Robert J. Roth, U.S. Atty., Kansas City, Kan., with him on the brief), for appellee.
Thomas E. Allen, Overland Park, Kan., for appellant.
Before PICKETT, BREITENSTEIN and HILL, Circuit Judges.
This is an appeal from a five-year sentence which followed appellant Whitaker's conviction for violation of 18 U.S.C. § 2312 (Dyer Act). The only ground for reversal is the denial of a motion for mistrial made after the prosecution and defense had completed the introduction of their evidence.
The basis for the motion is that Whitaker and his witness appeared in court in ill-kept clothing, needing a haircut and shave; and further, that Whitaker did not wear a belt in his trousers and had no shoestrings in his shoes. In denying the motion, the presiding judge commented that until the motion, he had not noticed that the defendant was not appropriately dressed; that he was dressed in a shirt and trousers, shaven, his hair was neatly dressed, combed, "and, as counsel mentioned, there is one member of the jury who is in shirt sleeves." At the request of Whitaker's counsel, the court instructed the jury that in weighing the testimony of Whitaker and his witness, no consideration should be given to the dress of Whitaker or his witness. The contention is wholly without merit and frivolous. The evidence of guilt is overwhelming. The record is barren of any evidence that would indicate that the dress of Whitaker or his witness was prejudicial, or that the court abused its discretion in denying the motion. Way v. United States, 285 F.2d 253 (10th Cir. 1960). Furthermore, the objection came too late. 4 C.J.S. Appeal Error § 246; St. Louis Southwestern Ry. Co. v. Ferguson, 182 F.2d 949 (8th Cir. 1950); Thomson v. Boles, 123 F.2d 487 (8th Cir. 1941), cert. denied, 315 U.S. 804, 62 S.Ct. 632, 86 L.Ed. 1204; People v. Shaw, 381 Mich. 467, 164 N.W.2d 7 (1969); French v. State, Okla. Cr., 416 P.2d 171 (1966).
The witness was a codefendant with Whitaker and had pleaded guilty to the offense.
Affirmed.