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Summary of Opinion: United States v. Timmy Lee Brumley et al., Nos. 72-1044 to 72-1046 (10th Cir. Aug. 14, 1972)

Factual and Procedural Background

Timmy Lee Brumley, Edward Dean Chill, and Charles Edward Drane were convicted of burglary of the Wilmore State Bank in Wilmore, Kansas, in violation of 18 U.S.C. § 2113 and 18 U.S.C. § 2. Brumley and Drane were sentenced to custody under the Youth Correction Act; Chill received an eight year indeterminate sentence.

The Bank was burglarized on December 17, 1970. A neighbor, Al Eckert, awoke to the Bank's alarm and observed a dark, older-model car leaving near the scene. The Bank reported a broken window and damage to the vault combination knob but only a small petty-cash container was missing. Sheriff Hackney broadcast an alert for a dark-colored car. A black 1965 Chevrolet occupied by the appellants was stopped by Coldwater City Marshal Nolan Spreier. After brief detention, Undersheriff Sherman requested and received permission to inspect the trunk; coveralls, gloves and a box of tools were observed. The appellants were frisked, transported to the courthouse, advised of their rights, asked to empty their pockets, and later jailed. Evidence recovered from the car, the getaway route, and scientific tests (including cigarette packs with matching tax stamps, beer cans, matching fibers, matching gloves, glass and paint particle comparisons) were introduced at trial. A written consent to search the Chevrolet was later obtained from owner Brumley.

The appellants appealed, raising multiple claims of error assigned in three broad categories: illegality of the warrantless searches and admission of evidence, dismissal of the indictment due to an uninformed waiver of a preliminary hearing, and denial of a fair trial due to alleged government nondisclosure and expert testimony defects.

Legal Issues Presented

  1. Whether the warrantless searches of the appellants' automobile (and related actions) were lawful and whether evidence seized as a result should have been excluded.
  2. Whether the grand jury indictment should have been dismissed because the appellants allegedly made an uninformed waiver of their right to a preliminary hearing.
  3. Whether the appellants were denied a fair trial by cumulative prejudice arising from the government's alleged refusal to produce evidence, speculative expert testimony, and expert testimony based on evidence destroyed during testing.

Arguments of the Parties

Appellants' Arguments

  • The searches of Brumley's automobile were illegal and violated constitutional rights; therefore evidence seized should have been excluded.
  • The grand jury indictment should have been dismissed because they uninformedly waived the right to a preliminary hearing.
  • They were denied a fair trial by cumulative prejudice from the government's refusal to produce evidence, speculative expert testimony, and expert testimony premised on evidence destroyed during testing.

Government's Arguments

  • The government bore and met the burden of proving voluntariness and validity of consent to search (including a written consent signed by Brumley).
  • The appellants signed a consent form that made them aware that a grand jury indictment would preempt a preliminary examination; therefore they did not suffer an uninformed waiver.
  • The allegedly withheld evidence was not favorable to the defense and was cumulative; no Brady violation prejudiced the appellants.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Dyke v. Taylor Implement Manufacturing Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968) Case involving warrantless searches where defendants were arrested and their car searched while they were in jail; cited by appellants to argue searches here required exclusion. The court distinguished Dyke as inapplicable because, unlike Dyke, the appellants here were not arrested and taken to jail prior to the car search; they were detained for investigative inquiry and one appellant consented to the trunk being opened.
Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968) Police may briefly stop and question persons to investigate possible criminal behavior even without probable cause to arrest. Used to justify Marshal Spreier's stop and temporary detention of the car's occupants as a proper investigative measure given the information available.
United States v. Saldana, 453 F.2d 352 (10th Cir. 1972) Support for the proposition that temporary detention and questioning without arrest is proper. Cited as authority consistent with allowing the temporary detention and questioning of the appellants.
United States v. Sanchez, 450 F.2d 525 (10th Cir. 1971) Support for temporary detention and questioning by police absent grounds for arrest. Cited as authority supporting the propriety of the detention in this case.
United States v. Troutman, 458 F.2d 217 (10th Cir. 1972) Additional Tenth Circuit authority on temporary detention/questioning. Referenced among authorities supporting the stop and detention as appropriate.
Adams, Warden v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) Recognizes that a brief stop to determine identity or maintain the status quo can be reasonable; police need not have full probable cause to act. Quoted to reinforce that an intermediate police response (brief stop) was reasonable in the circumstances of this small community.
United States v. Miles, 449 F.2d 1272 (10th Cir. 1971) The government bears the burden of proving consent for a warrantless search. The court found the government met its burden of establishing voluntariness and validity of consent to search the automobile.
United States v. Wainwright, 413 F.2d 796 (10th Cir. 1969), cert. denied, 396 U.S. 1009, 90 S.Ct. 566, 24 L.Ed.2d 501 (1970) Admission of evidence largely lies within the trial court's discretion and will not be reversed absent clear abuse. Cited to support deference to the trial court's evidentiary rulings regarding the challenged evidence.
United States v. Sierra, 452 F.2d 291 (10th Cir. 1971) Jurors assess credibility; appellate court should not re-evaluate witness credibility. Invoked to decline re-evaluation of credibility related to consent testimony and other evidence.
Chavez v. United States, 258 F.2d 816 (10th Cir. 1958) Supports the proposition that credibility assessments are for the jury. Cited alongside Sierra to support deference to factfinder credibility determinations.
Leeper v. United States, 446 F.2d 281 (10th Cir. 1971) No specific warning of the right not to consent is required before obtaining consent to search. Applied to reject appellants' contention that they should have been expressly informed of their right not to consent.
White v. United States, 444 F.2d 724 (10th Cir. 1971) Also holds that no specific warning need be given prior to consent to search. Cited in support of the same conclusion regarding consent warnings; combined with the written consent signed by Brumley.
Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) Preliminary hearing is a critical stage at which a defendant is entitled to counsel. The court recognized Coleman but found it not controlling because no preliminary hearing was actually held and counsel had been appointed when the hearing was continued.
Ross v. Sirica, 127 U.S.App.D.C. 10, 380 F.2d 557 (1967) Case suggesting error concerning preliminary hearing is not obviated by a grand jury indictment. Cited by appellants but the court rejected its applicability, relying on later authority to the contrary.
Blue v. United States, 119 U.S.App.D.C. 315, 342 F.2d 894 (1964), cert. denied, 380 U.S. 944, 85 S.Ct. 1029, 13 L.Ed.2d 964 (1965) One of the cases holding that preliminary examination provides discovery benefits to defendants. Discussed as part of a line of cases (in Milano) that courts have not universally followed; used to show that preliminary hearing's incidental discovery function does not define statutory purpose.
United States v. Karger, 439 F.2d 1108 (1st Cir. 1971) Example of a circuit not following Blue and Ross. Referenced in the Milano discussion to show the divergence of authority on the effect of failing to hold a preliminary hearing.
United States v. Milano, 443 F.2d 1022 (10th Cir. 1971) Discusses the role and statutory purpose of preliminary examinations and critiques reliance on Blue and Ross. Quoted to support the conclusion that omission of a preliminary hearing preempted by an indictment is not reversible error under the statute.
United States v. Kysar, 459 F.2d 422 (10th Cir. 1972) States that the sole function of a preliminary examination is to determine whether sufficient evidence exists to warrant detention. Applied to hold that omission of a preliminary hearing, when a complaint has been preempted by an indictment, does not constitute grounds for reversal.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) Establishes that suppression by the prosecution of evidence favorable to the accused and material to guilt or punishment violates due process. Adopted as the governing standard for evaluating the appellants' claim of government nondisclosure; applied in conjunction with Moore.
Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972) Reaffirmed Brady and emphasized the elements of suppression after defense request, favorable character, and materiality. Quoted and applied to conclude that the government did not suppress favorable material evidence and that the allegedly withheld evidence was cumulative and not prejudicial.
United States v. Kienlen, 415 F.2d 557 (10th Cir. 1969) Determination of a witness's competency to give expert opinion lies largely within the trial court's discretion. Relied upon to reject appellants' claim that expert testimony was speculative and to uphold the trial court's admission of expert opinion absent a clear abuse of discretion.

Court's Reasoning and Analysis

The court addressed the appellants' allegations in the order presented and explained its analysis in three parts corresponding to the issues raised.

I. Legality of Searches

The court first considered whether the automobile searches were lawful. It rejected the appellants' reliance on Dyke, finding that Dyke was distinguishable because there the defendants had been arrested and their car searched while they waited in jail, whereas here the appellants were detained (not arrested) for a reasonable investigative inquiry and Chill opened the trunk after consenting. The court held that the initial stop was proper under Terry and related Tenth Circuit authority permitting temporary investigative stops without probable cause. The court also quoted Adams, Warden v. Williams to emphasize that a brief stop to determine identity or maintain the status quo can be reasonable.

On consent, the court noted the government's burden to prove voluntariness (United States v. Miles) and found that the government met that burden; the trial court's admission of evidence was therefore upheld under the standard of deference to trial-court evidentiary rulings (United States v. Wainwright). The court also observed that credibility findings are for the jury (United States v. Sierra; Chavez v. United States) and declined to reweigh credibility. The court rejected the appellants' contention that they should have been expressly warned of the right not to consent, citing Leeper and White and noting Brumley's later written consent. Finally, the appellants' challenge to the courthouse "search" was dismissed as without merit because the record did not reflect a claim by Drane or Chill that any of the vehicle contents introduced at trial were theirs.

II. Preliminary Hearing and Indictment

The court summarized the chronology: arrests December 17, 1970; complaint December 21; preliminary hearing set December 31 and continued to January 15 because appellants had not yet secured counsel; counsel were then appointed; a grand jury indicted on January 14. The appellants argued their consent to postpone the preliminary hearing was uninformed and relied on Coleman and on Ross v. Sirica.

The court acknowledged Coleman but found it not controlling because a preliminary hearing was never held and counsel had been appointed when the hearing was continued. Relying on Milano (which criticized reliance on Blue and Ross and observed that 18 U.S.C. § 3060 clarifies statutory purpose) and on United States v. Kysar (stating the sole function of a preliminary examination is to determine whether sufficient evidence exists to warrant detention), the court concluded that omission of a preliminary hearing that is preempted by an indictment does not constitute reversible error and that the appellants were not prejudiced by lack of a preliminary hearing.

III. Alleged Brady Violations and Expert-Testimony Claims

The court applied the Brady standard as recently discussed in Moore v. Illinois: suppression by the prosecution of evidence favorable to the accused, after a defense request, that is material to guilt or punishment denies due process. The court determined that the allegedly undisclosed evidence was not favorable to the defense (though material) and was cumulative. The court cited Moore's teaching that there is no constitutional requirement for the prosecution to provide a complete accounting of all police investigatory work, particularly where no prejudice is shown.

Regarding expert testimony, the court reiterated that admissibility and competency determinations are within the trial court's discretion (United States v. Kienlen) and found no abuse of that discretion. Although some paint particles were consumed during testing, the appellants had the opportunity to cross-examine the expert who performed the tests; the court found no deprivation of confrontation and no demonstrated prejudice because the paint evidence was cumulative.

Holding and Implications

Holding: The court affirmed the convictions. The core ruling is emphasized below.

AFFIRMED

Implications: The direct effect is that the appellants' convictions for bank burglary and related sentences (Brumley and Drane to custody under the Youth Correction Act; Chill to an eight year indeterminate sentence) were upheld. The court's decision applied established Fourth Amendment, preliminary-hearing, and Brady-related principles to the present facts and deferred to the trial court's evidentiary and credibility determinations. The opinion does not announce a new rule of law beyond applying existing precedent to the facts of this case.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. TIMMY LEE BRUMLEY ET AL., DEFENDANTS-APPELLANTS.

BARRETT, Circuit Judge.

Timmy Lee Brumley, Edward Dean Chill, and Charles Edward Drane were convicted of burglary of the Wilmore State Bank (Bank), of Wilmore, Kansas, in violation of 18 U.S.C. § 2113 and 18 U.S.C. § 2. Brumley and Drane were sentenced to the custody of the Attorney General in accordance with the Youth Correction Act. Chill received an eight year indeterminate sentence.

The Bank is located in Comanche County, Kansas, a small, sparsely populated county of 3,200, which abuts the Kansas-Oklahoma line. The three major communities within the county include Wilmore, Coldwater, and Protection. Wilmore has a population of 150 and Coldwater and Protection have populations of 1,275 and 900, respectively.

On December 17, 1970 the Bank was burglarized at about 3:15 a. m. Al Eckert, who lived across the street from the Bank, was awakened by the Bank's burglar alarm. Eckert got up, looked out his window and saw a car pulling out of the driveway of a grain elevator near the Bank. The car was headed north out of Wilmore. Mr. Eckert described the car as an older model, dark in color, with a sloping back. Eckert called Lester Fry, a cashier at the Bank. Upon Fry's arrival, Eckert and Fry entered the Bank. They found a broken window and miscellaneous tools scattered on the floor. The vault was closed but the combination knob of the vault had been noticeably damaged. This apparently activated the alarm.

Fry opened the vault and turned off the alarm. A cursory inventory of the vault and the Bank proper indicated that the only missing item was a small plastic container in which the Bank kept a small amount of petty cash. This container usually consisted of change. Fry called Sheriff Hackney who lived nearby in Coldwater, and reported the burglary. He related what Eckert had seen.

Sheriff Hackney immediately radioed several law enforcement officials including Nolan Spreier, City Marshal of Coldwater. He informed them of the bank robbery and specifically requested that they be alert for a dark colored car.

Sheriff Hackney then left Coldwater and drove to Wilmore. Shortly after leaving Coldwater, Hackney observed an older, dark-colored car driving toward Coldwater. He called Spreier and asked him to check it out. Pursuant to Sheriff Hackney's call, Spreier stopped a black 1965 Chevrolet occupied by the appellants. Spreier asked the appellants to exit the car and wait until the deputy sheriff arrived.

Within several minutes Mayor Bransom, a deputy sheriff, and Undersheriff Sherman arrived. Sherman talked briefly with Spreier and then asked the appellants, "What's going on?" The appellants related that they had been on their way to Hutchinson to play pool but had decided to return to Woodward when it got late. Sherman then asked the appellants if he could look in the trunk of the car, and after each indicated he could, Chill opened the trunk. Sherman observed a pair of coveralls, a pair of leather gloves and "a cardbox full of burglary tools" in the trunk.

Undersheriff Sherman then lined the appellants up next to their car, frisked them, and then, with the help of Marshal Spreier and Mayor Bransom, took them to the Courthouse. Upon reaching the Courthouse, Sherman advised the appellants of their rights. He then asked them to empty their pockets. Drane and Brumley each had about $15 in change and loose bills in their pockets. The appellants were then jailed.

Glen Dillinger, an employee at the elevator across the street from the Bank, testified that the elevator had been broken into and that eight packs of Pall Mall cigarettes, two pairs of work gloves, one leather and one cotton, along with $35.39 in cash, had been stolen from the elevator sometime between closing on December 16, 1970 and opening on December 17, 1970. Special Agent James F. Miller of the F.B.I. drove along the getaway route and found five packages of Pall Mall cigarettes, some white cotton work gloves, two Coors beer cans (with Oklahoma stamped on the top of each), and a small plastic container similar to the one taken from the Bank.

On the morning of the 17th, Special Agent James B. Kelly searched the 1965 Chevrolet after obtaining a written consent to search it from the owner, Brumley. Kelly found, among other things, a package of Pall Mall cigarettes, which bore the same Kansas tax stamp number as the cigarettes stolen from Mr. Dillinger, and the same number as the cigarettes found along the getaway route, and three Coors beer cans, each of which had "Oklahoma" stamped on the top.

Additional evidence was also introduced at the trial based upon the scientific testing of evidence by the F.B.I. Microscopic leather fibers on one of the beer cans found along the getaway route were the same as and could have originated from the leather gloves found in the car. Synthetic fibers were found on another beer can that microscopically matched the synthetic fibers taken from the floor of the car. The composition, design, and sewing threads of two white cotton gloves, one found in the car and the other along the getaway route, were the same.

Also, glass particles found in the cuff of Chill's pants matched the physical and optical properties of the glass fragments from the broken window of the Bank. Paint particles found in the coveralls recovered from the trunk of the car could have had a common source with the paint particles on the tools in the Bank.

The appellants contend that: (1) the searches of Brumley's automobile were illegal and in violation of their constitutional rights and that all evidence seized and admitted pursuant to such searches should have been excluded by the trial court; (2) the grand jury indictment under which they were tried should have been dismissed by the trial court because of their uninformed waiver of the right to a preliminary hearing; and (3) they were denied a fair trial by the cumulative prejudice to "substantial rights" resulting from the Government's refusal to produce evidence, from the speculative and conjectural reasoning of expert witnesses, and from expert testimony based upon evidence that was destroyed during the course of the testing.

I.

Taking the allegations of error in the order presented, we must first determine whether the searches of the automobile were lawful. The appellants contend that their case is controlled by Dyke v. Taylor Implement Manufacturing Co., Inc., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), and that since the vehicle was subjected to warrantless searches without "probable cause" they are entitled to a new trial with all the "tainted" evidence excluded. We hold that this contention is without merit.

Dyke is not controlling herein because it is distinguishable from our case. In Dyke, the defendants were apprehended, arrested and taken back to the jail. The arresting officers searched the defendants' car while they were waiting inside the jail. In our case, the defendants were not arrested and taken to jail prior to their car being searched. Rather, they were merely detained by Marshal Spreier for a reasonable investigative inquiry and upon consenting to a search of their car, Chill opened the trunk for Undersheriff Sherman to conduct the search.

Marshal Spreier was not acting improperly in stopping the Brumley car, since "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). Temporary detention and questioning of persons by police officers in the course of their duties is proper even though there are insufficient grounds for arrest. United States v. Saldana, 453 F.2d 352 (10th Cir. 1972); United States v. Sanchez, 450 F.2d 525 (10th Cir. 1971). See also United States v. Troutman, 458 F.2d 217 (10th Cir. 1972).

" The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. See id., [392 U.S.] at 23 [ 88 S.Ct. at 1881]. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Adams, Warden v. Williams, 407 U.S. 143, p. 145-146, 92 S.Ct. 1921, p. 1923, 32 L.Ed.2d 612 (1972). (Emphasis ours).

Given the description of the car although sketchy, Marshal Spreier acted properly in stopping the car, in a town such as Coldwater, a small Kansas hamlet where often times not a single car will pass through town during an entire evening.

The Government has the burden of proving consent for the warrantless search. United States v. Miles, 449 F.2d 1272 (10th Cir. 1971). The Government met its burden of establishing the voluntariness and validity of the consent. The admission of evidence lies largely within the trial court's discretion and will not be set aside on appeal except for a clear abuse of that discretion. United States v. Wainwright, 413 F.2d 796 (10th Cir. 1969), cert. denied, 396 U.S. 1009, 90 S.Ct. 566, 24 L.Ed.2d 501 (1970). Also since jurors are charged with the duty of weighing and assessing the credibility of witnesses, a re-evaluation of credibility is not a function for the appellate court. United States v. Sierra, 452 F.2d 291 (10th Cir. 1971); Chavez v. United States, 258 F.2d 816 (10th Cir. 1958). We find no error.

The appellants also allege that they should have been apprised of their right not to consent to the search. However, no specific warning need be given. Leeper v. United States, 446 F.2d 281 (10th Cir. 1971); White v. united States, 444 F.2d 724 (10th Cir. 1971). This is especially true where, as here, the appellants not only orally consented to the search at the scene of the stop, but Brumley later signed a written consent to the search.

The appellants make a token argument that the "search" at the courthouse, which occurred when the Undersheriff "looked in the car," was in violation of their constitutional rights. The record does not indicate that either Drane or Chill claimed any of the contents of the vehicle admitted into evidence. We find that this allegation is without merit.

II.

The appellants allege that the grand jury indictment under which they were tried should have been dismissed by the trial court because of their uninformed waiver of the right to a preliminary hearing. A brief recapitulation of the facts will facilitate consideration of this allegation.

The appellants were arrested on December 17, 1970 and thereafter charged by complaint, dated December 21, 1970. A preliminary hearing was set for December 31, 1970. Prior to December 31, 1970, the appellants tried unsuccessfully to obtain their own attorney. On December 31, 1970 the appellants appeared before the United States Magistrate and asked that the hearing scheduled for that date be continued because they had been unable to acquire counsel of their choice. The hearing was continued until January 15, 1971. Counsel was then appointed for each of the appellants. On January 14, 1971 a grand jury indicted the three appellants. They now claim reversible error, contending that the indictment should have been dismissed because of their uninformed waiver of their right to a preliminary hearing.

The Government argues that the appellants were fully aware that they would waive their right to a preliminary hearing if a Grand Jury indictment were entered against them before the date of the hearing because they signed a consent form which stated in part that "I have the right to have a Preliminary Examination in my case within ten (10) days from December 23, 1970, in accordance with 18 U.S.C. § 3060(c), do hereby voluntarily consent that the Preliminary Examination in my case will, unless I waive the same or I am indicted by a Grand Jury, be held more than ten (10) days from December 23, 1970." The appellants allege that the consent form signed by them must necessarily be considered a nullity because they were never informed that it was anything more than a consent to have their Preliminary Examination more than ten days after December 23, 1970.

In support of their allegations the appellants rely heavily on Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), for the proposition that a preliminary hearing is a critical stage at which a defendant is entitled to counsel. We do not question the sagacity of Coleman. However, it cannot be considered controlling herein because a preliminary hearing was never held. The magistrate appointed counsel for the appellants on the same day that he continued their hearing to January 15, 1971.

The appellants also rely heavily on Ross v. Sirica, 127 U.S.App.D.C. 10, 380 F.2d 557 (1967), in support of their contention that an error surrounding one's right to a preliminary hearing is not obviated by a grand jury indictment. The appellants' reliance is misplaced. We have previously considered the efficacy of these cases in United States v. Milano, 443 F.2d 1022 (10th Cir. 1971), cert. denied 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 258 (1971), where Judge Coffin, of the First Circuit, sitting by designation, opined as follows:

"Defendant relies on Blue v. United States, 119 U.S.App.D.C. 315, 342 F.2d 894 (1964), cert. denied, 380 U.S. 944, 85 S.Ct. 1029, 13 L.Ed.2d 964 (1965), and Ross v. Sirica, 127 U.S. App.D.C. 10, 380 F.2d 557 (1967), which did say that the preliminary examination also provided the defendant with discovery. But that is merely an incidental benefit — which varies widely from case to case, depending on how much evidence the government produces at this early state — and not the statutory purpose. Blue and Ross have not been followed in other circuits. Cf. United States v. Karger, 439 F.2d 1108 (1st Cir. 1971). Moreover, 18 U.S.C. § 3060 was enacted after both cases, and, we think, clarifies the statutory purpose." 443 F.2d at 1025.

Since the sole function of a preliminary examination is to determine whether there is sufficient evidence to warrant the detention, United States v. Kysar, 459 F.2d 422 (10th Cir. 1972), we hold that its omission, whenever a complaint has been preempted by an indictment, does not constitute grounds for reversal. The appellants were not prejudiced for want of a preliminary hearing. We note, in passing, that each of the appellants remained free on bond during the pendency of this appeal.

III.

The appellants allege that they were denied a fair trial by the cumulative prejudice to "substantial rights" resulting from the government's refusal to produce evidence, from the speculative and conjectural reasoning of expert witnesses, and from the expert testimony which was based upon evidence that was destroyed during the course of its being tested.

The Supreme Court only recently reaffirmed the standard set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which outlined the conditions under which the withholding of evidence denies a fair trial and due process. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). Therein Justice Blackmun, speaking for the Court, opined:

"The heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the evidence." (p. 794, 92 S.Ct. p. 2568.)

Application of these standards convinces us that the appellants were not denied a fair trial. The evidence which the government allegedly failed to produce was not favorable to the defense, and although it was material, it was of a cumulative nature. We are in full agreement with Moore that "[w]e know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case," Moore, supra, (p. 795, 92 S.Ct. p. 2568) — especially in a case such as the one before us where no prejudice has been demonstrated.

The appellants allege that the statements of the Government's experts were pure speculation and conjecture and therefore inadmissible, and that they were denied the right of confrontation because paint particles used in comparison tests by the Government experts were consumed in the testing process. These allegations have no merit. This court has consistently held that the determination of the competency of a witness to give an opinion concerning a matter of expertise lies largely within the trial court's discretion, and this court will not usurp the trial court's discretion absent a clear showing of abuse. United States v. Kienlen, 415 F.2d 557 (10th Cir. 1969). In view of the fact that the appellants were afforded the opportunity to cross-examine the expert who performed the tests on the paint particles, they cannot now allege that they were denied their right of confrontation, merely because the paint particles were consumed during the test. The appellants have not shown any prejudice inasmuch as the paint particles were cumulative evidence.

We affirm.

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UNITED STATES v. BRUMLEY
(Sep 1, 1972)