McMillen v. United States, 6823

• Decision Date: 28 November 1967
• Docket Number: 6824.,No. 6823,6823
• Citation: 386 F.2d 29
• Parties: Raymond E. McMILLEN, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee. Douglas GRUCHY, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

386 F.2d 29 (1967)

Raymond E. McMILLEN, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee.

Douglas GRUCHY, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Nos. 6823, 6824.

United States Court of Appeals First Circuit.

November 28, 1967.

Charles M. Burnim, Boston, Mass., with whom F. Lee Bailey, Boston, Mass., was on the brief, for appellant Raymond E. McMillen, Jr.

William P. Homans, Jr., Boston, Mass., by appointment of the Court, for appellant Douglas Gruchy.

William J. Koen, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., and Edward J. Lee, Asst. U. S. Atty., were on the brief, for appellee.

Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

These are two appeals from judgments of conviction for bank robbery following jury verdicts. Both appellants were found guilty as principals of robbing a federally insured bank at Brockton, Massachusetts in violation of 18 U.S.C. § 2113(a), and of conspiring to rob such bank in violation of 18 U.S.C. § 371. In addition, appellant McMillen was found guilty, as a principal, of bank robbery by use of a dangerous weapon. 18 U.S.C. § 2113(d). Named as co-conspirators and defendants in the indictment against appellant McMillen, and co-conspirators only in the indictment against appellant Gruchy, were three other men — Matthews, Orr, and John Kelley — and named in both indictments as a co-conspirator but not a defendant was one Silva. Some of these men and others involved in the crime testified at the trial. It is the presence and absence of certain instructions relating to their credibility that give rise to the major issue on these appeals.

Of the testimony given by thirty-two witnesses during the five day trial, that of thirteen was directed to the robbery itself, conducted by Orr and Matthews, and the identification of automobiles used in the getaway. A substantial portion of the testimony was given by the four alleged co-conspirators named in the indictments and largely concerned the roles of appellants in planning the robbery, splitting up the proceeds, and endeavoring to induce prospective witnesses not to talk.

The two major accomplice witnesses were Silva and Matthews. Silva, named as a co-conspirator in both indictments, was a school boy who worked part-time for appellant Gruchy. Although his statement to the FBI and testimony before the grand jury in no way implicated his employer, Silva gave a different account of the relevant events the day before his appearance in the trial court and his testimony on the witness stand was most damaging to Gruchy. No charge had issued against him. While he knew that he could be prosecuted, he denied that any threats or promises had been made to him.

Matthews had pleaded guilty to robbery and conspiracy and was serving his sentence at the time appellants were brought to trial. A charge of armed robbery was still pending against him on the morning of his testimony. Until shortly before he testified, his account to the police had always been that guns had been left in the car and had not been taken into the bank. He had told the prosecution a week before trial that he would invoke the Fifth Amendment because of the still pending charge. Then, an hour before taking the witness stand, he admitted for the first time that he took a gun into the bank with him, repeated this in testimony, and acknowledged that he knew that the prosecution had already submitted to the court a motion to dismiss the armed robbery charge. In fact, the court had granted the motion before Matthews began his testimony.

The other two accomplice witnesses, less important to the prosecution's case than Silva and Matthews, were Walsh and William Kelley. A week before trial Walsh had told the government for the first time of the incriminating incidents to which he later testified. While denying that the FBI had threatened to indict him if he did not testify, he admitted that he still feared prosecution. William Kelley testified that the first time he had talked to a police officer about the case was the night before his testimony when he was "riding around in a car" after having had several beers.

The remaining relevant prosecution testimony was that (1) of a gun dealer who had sold the revolver used in the crime a week before to a customer who, appellant McMillen later testified, was accompanied by him; (2) of a young lady who contradicted appellant McMillen's testimony about the time of their meeting on the evening following the robbery; and (3) of a Newton police officer, Arnold. The latter testimony was the most direct corroboration, the officer testifying that he received a telephone call from McMillen two days after the robbery asking him to meet McMillen at a nearby cocktail lounge; and that in the ensuing conversation at the cocktail lounge McMillen asked how much information the FBI had, "how would it go for me if the missing money turned up?", indicating that he could get the money if it were not Sunday.

As far as appellant Gruchy's involvement is concerned, there was no corroborating testimony. The only testimony that could be said to approach corroboration was that of the manager of the robbed bank who said that on one occasion when Gruchy, a depositor, visited the bank he was accompanied by McMillen.

The case for the defense consisted of alibi testimony by each appellant, accounting for his whereabouts on the day of the robbery, and the testimony of several witnesses which corroborated such accounts, contradicted the testimony of Arnold, or described threats, promises, and improper motive on the part of the FBI and the police.

THE INSTRUCTIONS

The court in a long and thoughtful charge began with a careful discussion of the presumption of innocence, and then dealt with the fact-finding prerogative of the jury and the prosecution's burden of proof beyond a reasonable doubt. It then charged in pertinent part as follows on the issue of credibility of witnesses:

"Each witness who takes the oath from Mr. Lyons to tell the truth is presumed in the first instance to speak the truth, but that presumption may be outweighed by the manner in which the witness testified, by the character of the testimony given, by the type of story the witness tells, or by other contradictory evidence which you believe to be true.

* * * * * *

"You may also consider any relation each witness may bear to either side of the case. You may consider whether the witness has an interest in the outcome of the case. * * *

"If as to any witness you are satisfied that that presumption of truthfulness has been outweighed on the basis of what I have just reviewed with you as to the factors you may consider on credibility, you are free to give the testimony of that witness such credibility, if any, as you think it may deserve. You are free to accept that testimony, reject it in part or reject it completely."

The remainder of the instructions treated the particular charges against appellants, the elements required to be proved, and the complicated rules governing proof of conspiracy. The record shows no requests for particular instructions nor any objection.

The major contention of both appellants is that the quoted passage of the instructions, concerning a "presumption of truthfulness" of witnesses, combined with a failure to include an instruction that the testimony of accomplices should be scrutinized with caution, constitutes "plain error" under Fed.R.Crim.P. 52(b). We agree, with one important limitation.

LEGAL STANDARDS APPLICABLE

Analysis is complicated for the reason that the net impact of two interacting alleged errors in instructions must be assessed in the context of two cases with enough in common to be tried together but with enough differences to be considered separately on review. We shall discuss, first, each alleged error in the light of relevant authorities, and, second, the requirements of the standard of review applicable under Fed.R.Crim.P. 52 (b) in the absence of requests for instructions under Fed.R.Crim.P. 30. Finally, we shall apply these standards to the case of each appellant.

The instructions given in this case as to a "presumption of truthfulness" is, with two exceptions, substantially identical to that set forth in Judge Mathes' "Manual of Jury Instruction and Forms for Federal Criminal Cases", 27 F.R.D. 39, 67. In recent years this instruction has come under repeated attack for its absence of support in either authority or logic and has been watered down in its most recent version to read, "Ordinarily, it is assumed that a witness will speak the truth. But this assumption may be dispelled * * *." Mathes & Devitt, Federal Jury Practice and Instructions § 72.01 (1965) (emphasis added).

In Knapp v. United States, 316 F.2d 794 (1963), the Fifth Circuit ruled that to give the presumption instruction was not error, although not wise. A vigorous concurring opinion by Judge Brown proclaimed it more than unwise, particularly when coupled with a definition of the word "presumption". While he looked upon it as error he did not believe it plain error, and since objection was not made, he felt it was not reachable. In 1965 the Second Circuit dealt with the problem in United States v. Persico, 349 F.2d 6, when it reversed a conviction following a long and confused charge where the trial judge instructed, over objection, that a "witness is presumed to tell the truth" without saying how the presumption can be outweighed. The Third Circuit in 1966 observed that there was an almost complete absence of authority for talk about a legal presumption of truthfulness in a criminal case, that such talk derogated from the jury's right to pass on credibility and clashed with the instructions addressed to the presumption of innocence and the burden of proof. United States v. Meisch, 370 F.2d 768. This case was followed soon by United States v. Johnson, 371 F.2d 800 (3d Cir. 1967), where,...