Appeal from the United States District Court for the Eastern District of Wisconsin. No. 79-CR-137 -- John W. Reynolds, Judge.
Before Swygert, Cummings, and Pell, Circuit Judges.
Defendant-appellant George Ted Phillips was convicted by a jury on December 20, 1979 of two counts of kidnapping in violation of 18 U.S.C. § 1201(a)*fn1 and § 2,*fn2 one count of interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. § 2312*fn3 and § 2, and one count of transporting a woman across state lines for immoral purposes in violation of 18 U.S.C. § 2421 (Mann Act)*fn4 and § 2. On January 16, 1980, defendant received two life sentences on the two kidnapping counts, a five-year sentence for transportation of a stolen motor vehicle, and a five-year sentence on the Mann Act charge, all to run consecutively.
Defendant appeals from that conviction, raising four issues for review: (1) did the district court err in denying defendant's motion for a mistrial based on acts and statements of his codefendant; (2) was defendant denied effective assistance of counsel in violation of the Sixth Amendment; (3) did the district court err in overruling defendant's objections to the admission of certain evidence; and (4) did the district court err in imposing consecutive sentences. We affirm defendant's conviction.
The evidence presented at trial established the facts as follows. On August 23, 1979 at approximately midnight, Gary Smith and Robin Ramsay were sitting in Smith's car in the parking lot of a restaurant in Green Bay, Wisconsin when two men (defendant and Dennis Wieneke) approached the car pointing guns at Smith and Ramsay. The men ordered Smith and Ramsay into the back seat, and one hit Smith over the head with the butt of a gun. Wieneke and Phillips got into the front seat, and Phillips took Smith's wallet and Ramsay's purse. Wieneke drove around the corner where they picked up a third man, Joseph Clendenny, who sat on the back seat between Smith and Ramsay.
While heading south on Route 41, Phillips pointed a pistol at Smith and Ramsay, and played "Russian roulette" with Ramsay. At one point during the trip, they stopped near Slinger, Wisconsin and forced Smith into the trunk of the car. Ramsay was forced to disrobe and commit various sexual acts with Phillips, Wieneke, and Clendenny.
At approximately 7:00 a. m., they stopped the car in Illinois and helped Smith out of the trunk. The three men pushed Smith and Ramsay through a field, tied them to a tree, and then departed.
At trial, during the testimony of Robin Ramsay, codefendant Wieneke apparently made gestures*fn5 to his attorney, and the two conferred briefly. At that point, Wieneke's counsel interrupted the questioning and the following colloquy took place:
MR. GUERIN: Your Honor, at this point I would like an opportunity to ask the court to excuse the jury and I would like to address the court. I would like to interrupt this questioning.
THE COURT: Well, can you give me an inkling as to why?
MR. GUERIN: Yes. I talked the matter over with Mr. Wieneke and Mr. Wieneke indicated some reluctance to force this lady to go through this particular matter.
THE COURT: All right. The jury is excused.
Out of the jury's presence, Wieneke pled guilty to all charges. The jury then returned and was excused for the day.
Defendant moved for a mistrial the following day, which was denied without prejudice. Defendant renewed the motion the next day, on the ground that Wieneke's gesturing, the statements of his counsel made in front of the jury, and Wieneke's subsequent absence from the trial prejudiced his case. The motion for a mistrial was denied. When the jury was called in that morning, the judge gave the following cautionary instruction:
THE COURT: Ladies and gentlemen of the jury, I'm going to give you a cautionary instruction in regard to the absence of Mr. Wieneke.
One of the defendants who started this trial is no longer a part of the trial. For legal legally sufficient reasons, which I'm not going to go into at this time, he is no longer a part of the trial. I instruct you that is not and should not be of concern to you in dealing with the question of the which ultimately if the case does go to the jury, of the guilt or innocence of Mr. Phillips. And you are not to speculate as to the absence of why the other defendant is no longer standing trial. And ...