In a consolidated appeal brought by two men convicted on charges stemming from a heroin conspiracy, the 7th Circuit Court of Appeals affirmed their convictions. Ronald Zitt, who went to trial, argued he was entitled to a mistrial. Joshua Wampler pleaded guilty but argued he should be allowed to appeal.
The two were charged in a multi-count, multi-defendant indictment alleging a heroin conspiracy and substantive counts of distribution. Zitt was convicted by a jury of conspiring to distribute and of distributing heroin; Wampler pleaded guilty to conspiring to distribute heroin.
At Zitt’s trial, government witness James Summers answered a question saying, “I was in prison while he’s locked up,” referring to Zitt. Zitt’s attorney immediately moved for a mistrial, which was denied. The attorney declined the judge’s other remedies: a recess to investigate whether the two men were in the same facility at the same time or an admonishment to the jury that Summers’ answer was irrelevant.
“Even if we assume for the sake of argument that Summers’s testimony was improper, the statement was not so prejudicial that Zitt was denied a fair trial, so any arguable error would be harmless. Summers’s comment was brief and nondescript and, afterward, Zitt’s criminal history was never mentioned again,” Judge Ann Claire Williams wrote. “Thus, there was no danger that, because of this fleeting answer, the jury was prevented from fairly evaluating the evidence.”
“Finally, any impact Summers’s quick reference to Zitt’s past jail time may have had on the jury is outweighed by the overwhelming evidence of guilt,” he continued.
Turning to Wampler’s appeal, the judges dismissed his appeal finding he waived his right to appeal as a condition of his plea agreement. Wampler’s appointed attorney concluded that the appeal is frivolous and sought to withdraw. The Circuit judges granted the attorney’s motion to withdraw and denied Wampler’s motion for substitute counsel.
The case is United States of America v. Ronald Zitt and Joshua Wampler, 12-1277, 12-2865.