United States v. Cole

• Decision Date: 05 October 1971
• Docket Number: 71-1026 and 71-1036.,No. 20697,20697
• Citation: 449 F.2d 194
• Parties: UNITED STATES of America, Appellee, v. Earl Thomas COLE, Appellant. UNITED STATES of America, Appellee, v. Mitchell Calvin McHENRY, Appellant. UNITED STATES of America, Appellee, v. Samuel WOODARD, Jr. (a/k/a Joe Siefus), Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

449 F.2d 194 (1971)

UNITED STATES of America, Appellee, v. Earl Thomas COLE, Appellant.

UNITED STATES of America, Appellee, v. Mitchell Calvin McHENRY, Appellant.

UNITED STATES of America, Appellee, v. Samuel WOODARD, Jr. (a/k/a Joe Siefus), Appellant.

Nos. 20697, 71-1026 and 71-1036.

United States Court of Appeals, Eighth Circuit.

October 5, 1971.

COPYRIGHT MATERIAL OMITTED

Kenneth K. Simon, Kansas City, Mo., for Earl Thomas Cole.

Hubert L. Rowlands, Kansas City, Mo., for Mitchell Calvin McHenry.

William C. Hopkins, II, Kansas City, Mo., for Samuel Woodard, Jr.

Bert C. Hurn, U. S. Atty., Anthony P. Nugent, Jr., Asst. U. S. Atty., for appellee.

Before LAY, HEANEY and BRIGHT, Circuit Judges.

LAY, Circuit Judge.

This is an appeal by three defendants, Edward Thomas Cole, Mitchell C. McHenry and Samuel Woodard, Jr., from convictions of aiding and abetting others in the robbery of the Community State Bank of Kansas City, Missouri. The defendants raise several contentions of error, none of which we find to be meritorious. We affirm the judgments of conviction.

The bank robbery took place on July 3, 1970. It was carried out by two armed robbers who were later identified as Sam Bailey Stewart, age 17, and Robert Lee Miser, age 20. After their capture both Stewart and Miser pled guilty. Their testimony at this trial directly implicated all three defendants as aiding and abetting the commission of the robbery. The accomplices testified that on the morning of the robbery they met with the defendants and planned the crime. According to Stewart, after that meeting he, Cole and Woodard stole a white Ford Galaxie to be used in the robbery and at 2:00 p. m. on the same day, he, Miser and McHenry drove this auto to the rear of the Community State Bank. McHenry remained in the car while Stewart and Miser entered the bank and demanded the money at gun point. The stolen money was placed in a pillowcase and returned to the waiting auto. According to the accomplices, defendant Cole had stationed himself in a switch car along the escape route and defendant Woodard drove another auto to a location where it could be used to block the path of any pursuing police. A last minute change in the escape route, however, made use of these autos impossible. After the robbery the accomplices went with McHenry to an apartment on Paseo Street and were later joined by defendants Cole and Woodard. The stolen funds were divided in this apartment.

The defendant McHenry was identified as the driver of the get-away car by a bank teller who was working at a drive-in window the day of the robbery. He was also identified by a policeman and a cabdriver who were outside the bank when the get-away car drove off. Another witness, Doris Samuels, a resident of the Paseo Street apartments, testified that she saw both McHenry and Cole in the company of the two accomplices at the apartment house after 2:00 p. m. on the day of the robbery. A second tenant, Loree Bowman, testified that she saw Stewart and defendant McHenry arrive with a third man at the Paseo Street apartments. She saw the three enter Doris Samuels' apartment and after their arrival she found a pillowcase of money in Miss Samuels' refrigerator. Later she observed defendants Woodard and Cole along with a third unidentified male enter the apartments and join the other men.

SUFFICIENCY OF EVIDENCE

All of the defendants assert that the evidence was insufficient to support the guilty verdict. We disagree. It is true there exist contradictions within the testimony of the various government witnesses relating to the events that transpired on the day of the robbery. However, these circumstances are not a basis on which the judgments of conviction may be set aside. The credibility of the government's case is for the jury to resolve. See United States v. May, 419 F.2d 553 (8 Cir. 1970).

It is a settled principle of law that a conviction may rest on even the uncorroborated testimony of an accomplice if that testimony is not otherwise unsubstantial on its face. As stated in Williams v. United States, 328 F.2d 256, 259 (8 Cir. 1964):

"An accomplice is, of course, not disqualified as a witness in federal criminal trials. Nor is his testimony by rule of law of such unsubstantiality or such infirmity on interest or character as to be insufficient as a basis to convict without corroboration. A conviction can properly rest on the uncorroborated testimony of an accomplice if it is not otherwise incredible or unsubstantial on its face * * *."

See also Harris v. Ciccone, 417 F.2d 479 (8 Cir. 1969); Kirschbaum v. United States, 407 F.2d 562, 565 (8 Cir. 1969); Patterson v. United States, 361 F.2d 632, 634 (8 Cir.1966). The testimony of Stewart and Miser cannot be discounted as insubstantial. Furthermore, in the present case the record provides ample corroboration by other witnesses. Additionally, the trial court instructed the jury that the accomplices' testimony should "be received with caution and weighed with great care." Tillery v. United States, 411 F.2d 644, 647-648 (5 Cir. 1969); Davis v. United States, 411 F.2d 1126, 1128-1130 (5 Cir. 1969); United States v. Becker, 62 F.2d 1007 (2 Cir. 1933). Under the circumstances we find no deficiency in the substantive or procedural regularity surrounding the proof as to the guilt of the three defendants.

DISCOVERY

Defendants claim they were denied due process of law by the trial court's denial of their pretrial motion to discover (1) the names and addresses of all persons who had knowledge pertinent to the case, (2) the grand jury testimony of all witnesses and (3) all exculpatory information in the government's possession.

In the instant case the government did not reveal prior to trial the names of all of the persons who allegedly were in the presence of the defendants on the day of the robbery. The record verifies that the government's refusal to disclose the names of these persons resulted from its concern for the safety of prospective witnesses.

In a noncapital case an accused has no constitutional right to require the production of the names and addresses of possible witnesses. Drews v. Minnesota, 407 F.2d 1307 (8 Cir. 1969); Barnes v. United States, 347 F. 2d 925, 929 (8 Cir. 1965). Although it has been recognized that in a proper case, disclosure of prosecution's witnesses may be ordered, this circuit has uniformly held that such matters are within the discretion of the trial court. United States v. Harflinger, 436 F.2d 928, 936 (8 Cir. 1970); Barnes v. United States, supra, 347 F.2d at 929. And, as here, where alleged threats and intimidation of prospective witnesses has been disclosed, it is not an abuse of that discretion to limit discovery. United States v. Briddle, 443 F.2d 443 (8 Cir. 1971). In refusing to disclose the names of all of its witnesses the government represented no exculpatory information was suppressed. The defendants assert identity of the witnesses was vitally necessary to adequately prepare their defense. The record indicates that government witnesses had reported threats to the F.B.I. These conflicting claims must be weighed in view of all the attendant circumstances. Although no fixed rule may govern all cases, we are satisfied on the present record that there has been no prejudicial error in denying the defendants' request.

Prior to trial the defendants Woodard and Cole made a motion requesting production of the transcript of testimony of all persons who testified before the Grand Jury. The government argued that there was no demonstration of any "particularized need" for the production of these transcripts. The trial court ruled that the transcripts were to be made available only after a witness has testified. This ruling is in accord with the rule well established in this circuit. See National Dairy Products Corp. v. United States, 384 F.2d 457 (8 Cir. 1967); Hanger v. United States, 398 F.2d 91 (8 Cir. 1968); United States v. Davis, 410 F.2d 959 (8 Cir. 1969). Considering the facts presented in the light of the principles enunciated in the National Dairy and Hanger cases, we find no error here.

Defendants' last claim on restricted discovery relates to the alleged suppression of certain exculpatory information. The defendants rely on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The complaint here is that defendants were not informed of the government's evidence prior to the trial. The basic contention is that the defendants were not provided with certain evidence in advance which would have aided the defense in attacking the credibility of government witnesses. The disclosure at trial, they contend, comes too late to effectively investigate and utilize in the examination of the witnesses. Such an argument overlooks that the Brady case dealt with disclosure at trial and not prior to it. Cf. United States v. Cobb, 271 F.Supp. 159, 163 (S.D.N.Y.1967). See Carter, Suppression Of Evidence Favorable To An Accused, 34 F.R.D. 87, 88. We note that at the close of the government's evidence, the court advised defendants' counsel, outside of the presence of the jury, of its willingness to subpoena any witness the defendants wanted to be called on their behalf. A claim is now made that several other persons were allegedly in the presence of the defendants, before and after the robbery, on the day of the robbery. These persons were identified in the direct and cross examination of the government's witnesses. If the defendants in any way surmised that the testimony of these witnesses would have in any way aided the defendants, they could have been subpoenaed by the defense. No motion for continuance was made in order to obtain time for defendants' counsel to interview any of these persons. We find no error here.

RESTRICTION OF CROSS EXAMINATION

During the cross examination of the witness Stewart, the defense tried to show that prior to Stewart's guilty plea he attempted to escape from jail by feigning...