United States v. Wells, 19737.
Decision Date | 21 December 1970 |
Docket Number | No. 19737.,19737. |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Andrew Lee WELLS, Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
William D. Beyer, Cleveland, Ohio, for defendant-appellant; Edward F. Marek (court appointed), Cleveland, Ohio, on brief.
Harry E. Pickering, Asst. U. S. Atty., Cleveland, Ohio, for plaintiff-appellee; Robert B. Krupansky, U. S. Atty., Cleveland, Ohio, on brief.
Before CELEBREZZE and PECK, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.
Certiorari Denied December 21, 1970. See 91 S.Ct. 380.
Appellant was convicted of aiding and abetting the commission of armed bank robbery of a bank in North Bloomfield, Ohio, on January 5, 1968, in violation of Title 18, Sections 2 and 2113(a).
At trial, the government used the testimony of appellant's three accomplices who participated in the actual robbery of the bank to implicate him. The accomplices testified that appellant planned and later shared in the proceeds from the robbery. Appellant was not present during the course of the commission of the crime since he entered a Cleveland hospital that day and presented business records to establish this fact.
The government also offered evidence of appellant's alleged participation in a like and similar bank robbery in Cleveland, Ohio, that occurred a short time after the North Bloomfield robbery as tending to show his intent to commit the crime charged, and to show a common scheme or system of operation between the two bank robberies. We find no error in the admission of this similar act in evidence. United States v. Neal, 344 F.2d 254 (6th Cir. 1965); Kowalchuk v. United States, 176 F.2d 873 (6th Cir. 1949).
During the government's direct examination of one of the accomplices, appellant objected to and requested a mistrial for the following objectionable statement (italicized) made by the witness:
The District Court sustained the objection and went on to instruct the jury as follows:
Appellant's contention on appeal is that this statement concerning his commitment in the penitentiary was prejudicial and denied him a fair trial since his bad character was never in issue and he did not testify. The government contends that the District Court's prompt instruction to the jury cured the error, and if it did not, the error was harmless.
It is the general rule that the subsequent striking of erroneously admitted evidence accompanied by a clear and positive instruction to the jury to disregard it cures the error, but if the evidence is of such an exceptionally prejudicial character that its withdrawal from the consideration of the jury cannot remove the harmful effect caused by its admission, a new trial will be granted. United States v. Farber, 336 F.2d 586, 589 (6th Cir. 1964). Similarly, in United States v. Smith, 403 F.2d 74 (6th Cir. 1968) we held that under the circumstance there present including the fact that the evidence of guilt was largely circumstantial, the Court's admonition to disregard testimony to the effect that the defendant "just got out of the penitentiary" could not eradicate the prejudice from the minds of the jurors, and the case was remanded for retrial. In two recent cases (United States v. Nemeth, 430 F.2d 704 (6th Cir. 1970); United States v. Poston, 430 F.2d 706 (6th Cir. 1970)) we vacated...
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