U.S. v. Patterson

• Citation: 150 F.3d 382
• Decision Date: 04 August 1998
• Docket Number: No. 97-4385,97-4385
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Craig PATTERSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 382

150 F.3d 382

UNITED STATES of America, Plaintiff-Appellee, v. Michael Craig PATTERSON, Defendant-Appellant.

No. 97-4385.

United States Court of Appeals Fourth Circuit.

Argued April 9, 1998.

Decided Aug. 4, 1998.

ARGUED: Stanley Franklin Hammer, Wyatt, Early, Harris & Wheeler, L.L.P., High Point, North Carolina, for Appellant. John Warren Stone, Jr., Assistant United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: Walter C. Holton, Jr., United States Attorney, Greensboro, North Carolina, for Appellee.

Before WIDENER and LUTTIG, Circuit Judges, and DOUMAR, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Senior Judge DOUMAR wrote the opinion, in which Judge WIDENER and Judge LUTTIG joined.

DOUMAR, Senior District Judge:

Craig Patterson was indicted for bank robbery, armed bank robbery, use of force in avoiding apprehension for bank robbery and use of a firearm in connection with a crime of violence in violation of 18 U.S.C. §§ 2113(a) & 2; 2113(d) & 2; 2113(e) & 2; and 924(c)(1) & 2, respectively. The jury found him guilty on all four counts. The Court sentenced Patterson to 120 months on Counts I-III (the bank robbery counts) and 120 months on Count IV which is to run consecutively with the consolidated sentence on Counts I-III. Patterson has appealed arguing that the district court erred (1) in not suppressing the items seized from his Honda, (2) in admitting pager records from the pager seized from the Honda, (3) in refusing to give an eyewitness jury instruction in the manner set forth in United States v. Holley, 502 F.2d 273 (4th Cir.1974), and (4) in refusing to define reasonable doubt and prohibiting defense counsel from defining reasonable doubt during closing argument. The Court has considered these arguments and affirms the judgment of the district court.

Two masked men robbed the Central Carolina Bank in Summerfield, North Carolina on November 8, 1996. After being caught by the police, Tedrick Greene confessed that he was one of the robbers. According to Greene, Appellant Patterson was his co-participant While Greene was being interviewed by Detective Church after his apprehension on the afternoon of the robbery, he implicated Patterson as his co-participant. He gave the police Patterson's address and told them that Patterson drove a navy blue Honda with 30 day plates. Greene told them that the two had used the Honda to drive to a Bi-Lo where they switched to an Audi which they drove to the bank.

in the robbery of the Central Carolina Bank.

Detective J.M. Landers was dispatched to Patterson's address on Cambourne Street. While Detective Landers was at the address, he was contacted by Detective Church who asked him if he saw a Honda Civic at the residence. Landers said he saw a Honda parked almost directly in front. Church then called Sineath Motor Company and had the car towed to the impound lot. The car was towed within an hour and searched the next day at the lot.

The car was processed and inventoried by Stormy Cross, a Guilford County evidence technician. Cross found several items in the car including a blue pager and Tedrick Greene's identification card. At trial, Cross testified that she recorded the entries on the pager and the last call reflected an entry of 854-8997 followed by a "9" with nine "1's". The date of the entry was not recorded. The phone number was Patterson's.

Several bank employees testified at trial, but none of them identified Patterson as an assailant although they gave a general description of Greene's co-perpetrator as between five feet five and five feet seven inches tall, weighing between 135 and 150 pounds, and wearing a yellow sweater or sweatshirt.

Greene testified at Patterson's trial that the two had robbed the bank together. In addition, he testified that the day before, he and Patterson stole a red Audi and a gray Isuzu Rodeo which they planted at a Bi-Lo supermarket and at Summerfield Elementary School, respectively, to aid them in their escape.

Greene also testified that, Patterson told Greene at their arraignment that, on the day of the robbery, he (Patterson) went to the elementary school and tried to use the phone but the power was out at the school so he left in the Isuzu Rodeo.

Tyrone Hooks, who was Patterson's roommate at the time of the robbery, also testified at trial. He testified to a number of details of the robbery which he stated he learned from Patterson. He also testified that on the day of the robbery, Patterson told him that he had left Greene in Summerfield and needed to rescue him. He further testified that Patterson and three friends, Pomoy, Xay and J.B. Henley, drove toward Summerfield. Hooks stayed in Greensboro and when he learned that Greene had been caught, he paged the four men on Xay's beeper and entered a "911" message as a signal for them to return home.

Hooks testified that he and Patterson jumped out of their apartment window when a police officer arrived at the apartment. Hooks also testified that Patterson had manufactured an alibi for the robbery and would claim that he was with J.B. Henley on the morning of November 8, 1996.

Hooks also admitted while testifying that he stands five feet seven inches tall and weighs 160 pounds, that he had participated in robberies with Greene in which he had used an Intertech.22 (the gun used by the perpetrator in this case, believed to be Patterson) and in which he had driven Patterson's Honda.

Three women who were present at Summerfield Elementary School on the day of the robbery testified to having seen an African American male at the school on the afternoon of the robbery. One of the witnesses identified Patterson in court. Jennifer Bolton testified that she observed a young man enter the school office and request to use the phone. Bolton picked Patterson out of a photo spread. She admitted on cross, though, that she had read about the robbery in the newspaper on November 9 and the same photograph of Patterson which was in the newspaper was used in the photo lineup. At trial, she testified that Patterson "kind of looks like" the man she saw at school.

Donna Yost, who is a bus driver for Guilford County Schools, was sitting in her parked car on the grounds of the school on the afternoon of the robbery when she saw a young African American male enter one of the cars in the parking lot. She described the car as a "Blazer-type" vehicle that began with an "R." Yost had been in her car working crossword puzzles and listening to the radio. The windshield wipers were on at the time. She identified Patterson in two photo lineups: in one he was wearing glasses, in the other he was not. His was the only photo that appeared in both lineups. She testified at trial that she was "pretty certain" that the defendant was the person she saw at the school.

Sabrina Thorton was also at the school on November 8, 1996. She testified that while she was in the school office she saw a young African American male come into the school and that he had a blue pager. She was not able to identify the man in a photo lineup, and she did not attempt to identify him in court.

Patterson presented alibi evidence through Linda Henley who testified that she saw Patterson at her house in Greensboro between 11:50 a.m. and 12:05 p.m. on November 8, 1996. She testified that Summerfield is a twenty minute drive from her house. The robbery occurred at approximately 11:40 a.m.

ANALYSIS

A. Seizure of Patterson's Honda

Patterson first contends that the district court erred in denying his motion to suppress the items seized from his Honda. Patterson argues that probable cause did not exist to seize the vehicle and that even if probable cause existed there were no exigent circumstances preventing the officers from obtaining a search warrant.

A district court's finding of probable cause is reviewed de novo. United States v. Wilhelm, 80 F.3d 116, 118 (4th Cir.1996). The reviewing court "should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).

The district judge stated in his oral order denying the motion to suppress that there was very thin evidence of probable cause to search the vehicle because there were no guns or money unaccounted for. The judge found, however, that there was probable cause to seize the vehicle as "an instrumentality or evidence of the crime."

Patterson bases much of his argument regarding the alleged lack of probable cause on cases involving corroborated and uncorroborated statements made by informants. What Patterson fails to address is that the "informant" in this case was a co-participant in the robbery. A review of cases from this and other circuits reveals that courts generally apply a different standard to a co-participant than to other, more typical informants. See Craig v. Singletary, 127 F.3d 1030 (11th Cir.1997) (en banc) (holding that a co-defendant's confession is sufficient to be the basis for probable cause); United States v. Lim, 984 F.2d 331, 337 (9th Cir.1993) (holding that probable cause for an arrest existed where the defendant had been observed acting nervous after deboarding a plane, his co-defendant indicated that drugs found on him belonged to the defendant and a flight itinerary carried by the codefendant implicated the defendant); United States v. Chapman, 902 F.2d 1331, 1332-33 (8th Cir.1990) (holding that probable cause existed where there was a significant amount of evidence to link a suspect to a bank robbery, "the most damaging being the implicating confession of his co-defendant"); Thomas v. Leeke, 393 F.Supp. 282, 286 (D.S.C.1975) (noting that police had probable cause to charge an individual with robbery based on his co-defendan...