White v. United States, 8010.

• Decision Date: 18 June 1960
• Docket Number: No. 8010.,8010.
• Parties: Robert Joyner WHITE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

279 F.2d 740 (1960)

Robert Joyner WHITE, Appellant, v. UNITED STATES of America, Appellee.

No. 8010.

United States Court of Appeals Fourth Circuit.

Argued March 15, 1960.

Decided June 18, 1960.

COPYRIGHT MATERIAL OMITTED

Ivy P. Blue, Jr., Richmond, Va. (Blue & Wyatt, Richmond, Va., on brief), for appellant.

Henry St. J. FitzGerald, Asst. U. S. Atty., Alexandria, Va. (Joseph S. Bambacus, U. S. Atty, Richmond, Va., on brief), for appellee.

Before SOBELOFF, Chief Judge, and SOPER and BOREMAN, Circuit Judges.

BOREMAN, Circuit Judge.

Robert Joyner White, hereinafter sometimes referred to as "White" or "defendant", was indicted for armed robbery, was tried, convicted and sentenced to a prison term of fifteen years. Motions for mistrial, for judgment of acquittal, to set aside the verdict and to grant a new trial were denied.

On this appeal the defendant has indulged in innumerable assignments of error and, after full consideration of this barrage, the task of determining those assignments which merit discussion is quite difficult. We venture the suggestion that it is often more effective to concentrate the attack on the more important asserted errors and abandon those which are easily recognized as frivolous. Broadly, the defendant charges that the evidence was insufficient to sustain a conviction, that improper evidence was admitted, that the court erred in denying motions for mistrial and judgment of acquittal and that the defendant was not accorded a "fair trial."

Certain evidence offered by the prosecution was first admitted over objection, or was conditionally admitted upon the representation of Government counsel that it would be connected up, but was later determined by the court to be improper and the jury was instructed to disregard it. We first examine the evidence which was permitted to remain in the case for jury consideration.

There was testimony to the effect that shortly before nine o'clock on the morning of April 28, 1959, a masked bandit appeared in the Lakeside Branch of the First Federal Savings and Loan Association of Richmond, Virginia, and, at gun point, robbed the two bank employees of $3,125. The employees, Miss Dortch and Mr. Gilchrist, could furnish no positive identification of the robber. They described him as of medium size, wearing blue suede, rubber-soled shoes and a red and blue or red and black striped shirt, his face being completely covered with a plastic or rubber mask. Both employees were in the banking room when the robber, who obviously came from a furnace and janitor's room immediately adjacent to the banking room, suddenly appeared. He held a gun in his hand and ordered Miss Dortch to put the bank's money in a shopping bag which he carried. After obeying this direction and the further direction that both employees crawl into the adjoining janitor's or furnace room, the robber wedged the door of that room tightly closed by the use of a screw driver, cautioning the employees against attempting to give an immediate alarm. He made good his escape.

On the afternoon of the same day, White, a widower, was found at the home where his two elderly aunts and one of his children resided, was taken into custody and questioned by agents of the Federal Bureau of Investigation but was released. Two days later, White was arrested in his own apartment and certain items of clothing and personal belongings, some of which were introduced into evidence at the trial, were voluntarily given to the arresting officers for examination. The money, gloves and the mask worn by the robber were never found.

The Government presented evidence to prove a theoretical reconstruction of the crime. It was the prosecution theory that the lone bandit broke into the bank building on the night of April 27, or in the early morning of April 28, and hid in the furnace room until the bank employees arrived at approximately 8:30 on the morning of April 28; that after robbing the bank the bandit supposedly used a stolen car or stolen cars to escape. To corroborate extrajudicial statements said to have been made by White, the Government offered evidence of a series of circumstances, clothing and personal belongings of the defendant and eye witness testimony.

Following his arrest, the defendant was placed in the Richmond City jail and one Clarence B. Snead, Jr., was there confined at the same time. Snead testified that he had known White since 1942 or 1943 and that while they were in jail, White told him in substance as follows: That, for about six months, he had been "casing" the bank which was robbed; that he had broken into the bank and perpetrated the robbery; that he had one stolen automobile parked in front of the bank and one "up from the bank"; that he had stolen the automobiles for that purpose — "to use them to get away when he went out of the bank to get to his car where he had parked it"; that he had a gun, an army .45 automatic, a pair of lady's gloves and a Halloween mask; that he entered the bank building about three o'clock in the morning and waited "in the boiler room or janitor's room" for the bank to open; that he knocked out the light bulb in the janitor's room with a broom handle so he would not be detected if someone attempted to turn on the light; that after the robbery he put the employees in the janitor's room, wedging a "screw driver or something in the door to keep them from getting out"; that he had obtained three thousand and some odd dollars in the robbery. This witness testified to a further conversation in which White suggested that if Snead should be released, White would tell him where the money was located so that the witness could obtain a bondsman for White. However, Snead was removed from the jail to another place of detention before the conversation was completed. It was shown by the testimony of other witnesses that the light bulb in the janitor's room was, in fact, broken, and this circumstance was not at any time mentioned in newspaper accounts of the robbery.

Morris J. Lapides testified that he had known White for several months and that in the month of February 1959 he was in White's apartment; that White showed him two rubber Halloween masks, one having a grayish pallor representing an old man, and one with yellow and green coloring representing a clown; that the masks were of the type which "fit completely over your head"; that White exhibited to him three guns, "two .45 caliber automatics and a .38" and "a pair of black woman's kid gloves that had been cut off to make them short." This witness further testified that on the day following the robbery, he met White at the Bell Tower Restaurant on North Third Street in Richmond about three o'clock in the afternoon and that White was reading from a copy of a Richmond newspaper which contained an account of the bank robbery.¹

Another witness, Thomas Davis Rouse, was confined with White in the Richmond City jail. Rouse testified that in the month of May 1959, he had a conversation with White concerning the bank robbery and portions of the testimony of this witness are reproduced.²

One Severino who had been confined in jail with White testified that after he had refused to join White in a proposed jail break, White said: "Well, don't try to stop me because I would just as soon kill you as kill them. * * * You know a guy that's got nerve enough to rob a bank by himself has got nerve enough to hold a pistol on somebody to make a break for his freedom."

FBI Special Agent Barritt testified that early in the afternoon of April 30, two days following the bank robbery, he and another agent, Roche, went to White's apartment; that White opened the door and was informed that they had a warrant for his arrest. When asked if they had any conversation with White, Barritt answered: "Yes. When we entered, Mr. White asked, `What mistakes have I made?' after we had informed him that he was under arrest for this robbery. I asked Mr. White what mistakes did he think we had found? He said that he didn't know, that he knew he had made some mistakes, but he wondered which ones we had been able to find. He said that he expected this and that he should have left town."

Agent Barritt then identified certain articles which were found in White's apartment and which were admitted in evidence. These included a .45 caliber automatic, a pair of dark suede shoes with a "ripple type sole" and a striped sport shirt. He testified that there were several other pistols and sport shirts found in the apartment. The shoes, when first produced, were described by the witness as "dark blue or Navy blue suede shoes", but on cross-examination, after describing them as "Navy blue or black", agent Barritt said: "I suppose they would be black, charcoal gray, maybe would be the best description." Counsel for White then asked, "And you agree that they are black?" and the witness answered, "Yes, sir."

The soles of these shoes bore a very distinctive design. The evidence disclosed that there was a modern combination heating and airconditioning unit in the furnace room in the bank, and on top of the unit and a water heater, in accumulated dust, the investigating officers discovered impressions obviously made by shoe soles. By a procedure, which was fully explained, these impressions were lifted and preserved by the use of a specially designed tape, photographed and compared with the design in the soles of White's suede shoes. It was testified that the prints found on the unit in the bank were made by shoes having the same distinctive design, although no witness could testify that the prints were actually made by White's shoes.

Defense counsel emphasized that the shoes worn by the robber were described by the bank employees as "blue suede". It was argued that the shoes introduced in evidence were black and could not, then, have been those worn by the robber. However, the shoes were in evidence for the court and jury to see and examine. It appears that they were...