United States v. Silvers

• Decision Date: 17 April 1967
• Docket Number: No. 15740.,15740.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Billy Ray SILVERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

374 F.2d 828 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. Billy Ray SILVERS, Defendant-Appellant.

No. 15740.

United States Court of Appeals Seventh Circuit.

February 21, 1967.

Rehearing Denied April 17, 1967.

Sigmund J. Beck, Sidney Mishkin, Indianapolis, Ind., for appellant.

Alfred W. Moellering, U. S. Atty., South Bend, Ind., Joseph F. Eichhorn, Asst. U. S. Atty., Fort Wayne, Ind., Kenneth P. Fedder, Asst. U. S. Atty., South Bend, Ind., for appellee.

Before DUFFY, Senior Circuit Judge, and SWYGERT and CUMMINGS, Circuit Judges.

Rehearing Denied April 17, 1967 en banc.

CUMMINGS, Circuit Judge.

This is an appeal from Billy Ray Silvers' conviction for assaulting and putting the life of Vernon E. Laue in jeopardy while aiding and abetting in the robbery of a federally insured bank. The information alleged a violation of Section 2113(d) of the Criminal Code (18 U.S.C. § 2113(d)).

According to the Government's evidence, on the evening of December 15, 1965, Silvers and co-defendant Orrin Scott Reed entered Mr. Laue's home in Rolling Prairie, Indiana. Both men wore transparent nylon stocking masks. Silvers was armed with a sawed-off shotgun. Laue was forced to accompany Reed to the Rolling Prairie branch of the Citizens Bank of Michigan City, Indiana; Laue was manager of that branch. Silvers remained at the Laue home pointing his shotgun at Mrs. Laue and the three Laue children.

When Reed and Laue reached the nearby branch bank, Laue opened the vault, removed $8,509 therefrom and turned it over to Reed. Reed and Laue then returned to the Laue home. Thereupon Reed and Silvers escaped with the loot, approximately 20 minutes after first entering the Laue residence.

Silvers was arrested near Bloomington, Indiana, three days thereafter. He was then using the alias George Blue. A sawed-off shotgun was discovered in his motel room there. In applying for the appointment of counsel, Silvers advised the District Court that he had recently escaped from the Indiana State Prison.

On January 3, 1966, Silvers and Reed were charged by information with the robbery of this branch bank. Under the Criminal Justice Act (18 U.S.C. § 3006A), John O. Humphreys of South Bend, Indiana, was appointed as counsel for Silvers. On January 6, 1966, Humphreys filed a motion for a psychiatric examination of Silvers to determine whether he was sane at the time of the alleged offense and whether he was competent to defend. In support of the motion, Humphreys advised the District Court that he had noticed differences in Silvers' behavior during four conferences with him. Humphreys apprised the District Court of Silvers' reformatory, jail, and prison record from the time he was 14 and mentioned that Silvers was a recent prison escapee. Humphreys also mentioned that Silvers' mother thought he needed psychiatric help from the time he was 16. As a result of this showing, the District Court appointed a psychiatrist to examine Silvers, but only to determine whether he was competent to stand trial. After receiving the psychiatrist's report, the District Court found that Silvers was able to understand the proceedings and to assist in his defense. Thereupon, Silvers pleaded not guilty.

In his opening statement at the trial, Silvers' counsel told the jury that the evidence would show that Silvers was not sane on the evening of the offense.

Silvers complains that prejudicial error occurred at the joint trial of Silvers and Reed because: (1) the jury was permitted to hear evidence that might indicate he had committed other crimes and (2) a dual-shot prison photograph of Silvers was admitted into evidence.

As to the first alleged error, Gene Neff, a state police trooper, was called as a witness for the Government. Without objection, he testified that one of the detectives at the prison¹ gave Neff "two mug shots" and requested that Neff show them to Mr. and Mrs. Laue. For that purpose, Neff called on Mrs. Laue on December 17. The following colloquy then occurred during Neff's direct examination by the Assistant United States Attorney:

"Q. You say mug shots, what is that?

A. They are photographs of former inmates of the State Prison.

By Mr. Humphreys: Your Honor, I will object to the testimony by the witness as being unresponsive to the question asked by Mr. Fedder. Also an improper topic to bring out in examination of this or any other witness.

By The Court: Yes, the objection is sustained. That's right."

Neff next testified that the two photographs were of Charles Spiker and Billy Ray Silvers, and that Mrs. Laue identified the photograph of Silvers as the intruder who terrorized her and the children with his shotgun during the neighboring bank robbery.

Over objection of Silvers' counsel, the District Court received in evidence the photograph of Silvers. The photograph actually consists of two side-by-side 2 × 2¼ inch pictures of Silvers, separated by a black line. The left side of the dual photograph is a profile view, and the right side is full face. The garb is nondescript,² and there are no identifying marks on the exhibit.

Silvers also asserts that prejudicial error occurred during the direct examination of FBI Agent Irving K. Owen, a Government witness. Owen testified that he had conversed with Silvers on December 18, and that Silvers denied any knowledge of the Rolling Prairie bank robbery. Then the following colloquy occurred:

"Q. Did you talk to him Silvers about his whereabouts?

A. Yes, Sir. I asked him where he was at the time of this robbery and if he also knew the other subject for whom there was a warrant issued by the name of Reed.

Q. What did he say?

A. He stated that he knew Reed formerly but that he Silvers had not seen Reed since he Silvers had escaped. This conversation was on December 18th."

At this point, Silvers' counsel moved unsuccessfully for a mistrial. At the close of the trial, the District Court gave defendant's instruction No. 8 to the effect that a jury must not consider evidence of a defendant's previous conviction of a felony. The Court also instructed the jury not to consider any improper questions or stricken answers.

As to the testimony showing that Silvers had been imprisoned, the general rule of course is that evidence that an accused has committed another crime is inadmissible, and that any error in admitting such evidence cannot always be cured by sustaining objections or by instructions. United States v. Magee, 261 F.2d 609, 611, 612-613 (7th Cir. 1958); United States v. Reed, 376 F.2d 226 (7th Cir. 1967). Similarly, it is error to admit photographs that on their face disclose past incarceration.³ United States v. Harman, 349 F.2d 316, 320 (4th Cir. 1965); Barnes v. United States, 365 F.2d 509 (D.C.Cir. 1966). However, under the circumstances of this case, we conclude that the errors of which defendant complains were not prejudicial and therefore must be disregarded under Rule 52(a) of the Federal Rules of Criminal Procedure.

The first trial reference to Silvers' past incarceration occurred during the direct examination of State Trooper Neff. Trial counsel for Silvers recognized that the prosecutor was not deliberately seeking to inject damaging facts into the record,⁴ for the first portion of the objection was that the testimony was unresponsive. After trial counsel's objection was sustained, he brought out on cross-examination that the photographs of Silvers and Charles Spiker were prison photographs. He made no attempt to have that testimony stricken. On cross-examination of Sheriff Arnold, defense counsel asked whether some of the photographs shown to Mr. and Mrs. Laue "were from the files of the FBI." Later in the cross-examination of Sheriff Arnold, he elicited the answer that in addition to the photographs of Silvers and Reed, Arnold exhibited "8 or 10 other photographs from the ...