432 F2d 941 Maggard v. L Wainwright

432 F.2d 941

John Patrick MAGGARD, Petitioner-Appellant,
Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee.

No. 29943 Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

October 2, 1970.

Rehearing Denied January 7, 1971.

John P. Maggard, pro se.

Earl Faircloth, Atty. Gen., Tallahassee, Fla., Charles W. Musgrove, West Palm Beach, Fla., for appellee.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.


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John Patrick Maggard, a Florida state prisoner, appeals from the District Court's denial of his petition for a writ of habeas corpus. We affirm.


The sole issue presented upon this appeal is whether the appellant was denied a fair and impartial trial because his trial court twice directed the prosecution to reopen its case, subsequent to defense motions for a directed verdict.1


It is well established that a trial court may permit the reopening of a case in order that omitted evidence may be presented. Considerable latitude in discretion is vested in the trial court in such matters. Hale v. United States, 5th Cir., 1969, 410 F.2d 147, cert. den. 396 U.S. 902, 90 S.Ct. 216, 24 L.Ed.2d 179; Rhyne v. United States, 7th Cir., 1969, 407 F.2d 657; Morgan v. United States, 9th Cir., 1967, 380 F.2d 686, cert. den. 1968, 390 U.S. 962, 88 S.Ct. 1064, 19 L.Ed.2d 1160; also Massey v. United States, 10th Cir., 1966, 358 F.2d 782, cert. den. 385 U.S. 878, 87 S.Ct. 159, 17 L.Ed.2d 105. Moreover, the record reveals that the trial judge's suggestions were made outside the presence of the jury so that no possible prejudice could have resulted from the suggestions.


We have carefully examined the record in this case, including appellant's trial transcript. We agree with the district court's holding that the trial court's actions did not substantially prejudice any federally-protected right of the appellant. Accordingly, the judgment below is affirmed.





[1] Rule 18, 5th Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir., 1970, 431 F.2d 409, Part I


Appellant has also raised two other contentions in his brief which is before this Court. Since these grounds were not presented to the district court, they will not be adjudicated upon this appeal. Walker v. Wainwright, 5th Cir., 1969, 409 F.2d 1311