U.S. v. Rowan

• Decision Date: 11 July 1975
• Docket Number: Nos. 74-2283,s. 74-2283
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry Jean ROWAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Leon JACKSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Sharon Renee GADDIE, Defendant-Appellant. to 74-2285.

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518 F.2d 685

UNITED STATES of America, Plaintiff-Appellee, v. Terry Jean ROWAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Leon JACKSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Sharon Renee GADDIE, Defendant-Appellant.

Nos. 74-2283 to 74-2285.

United States Court of Appeals Sixth Circuit.

July 11, 1975.

Michael D. O'Connor, Kalamazoo, Mich. (Court-appointed), for Jackson.

Frank S. Spies, U. S. Atty., Grand Rapids, Mich., for United States.

Bruce W. Neckers, Grand Rapids, Mich. (Court-appointed), for Rowan.

Michael O'N. Barron, Kalamazoo, Mich. (Court-appointed), Thea Rossi Barron, Kalamazoo, Mich., for Gaddie.

Before CELEBREZZE, MILLER and LIVELY, Circuit Judges.

CELEBREZZE, Circuit Judge.

These appeals are from convictions arising out of a series of events which culminated in the robbery of a branch of the American National Bank of Kalamazoo, Michigan. Appellant Rowan was acquitted on three counts involving bank robbery, under 18 U.S.C. §§ 2113(a), (c), (d) and 2(a), but was convicted on one count of possessing an unregistered destructive device, in violation of 26 U.S.C. §§ 5845(a), (f), 5861(d), and 5871 and 18 U.S.C. § 2(a). Appellants Jackson and Gaddie were convicted on the three bank robbery counts and on the charge of possessing a Molotov cocktail.

Briefly summarized, the evidence established that three persons entered a branch of the American National Bank at 10:00 a. m., on January 15, 1974. With gun in hand Jackson ordered that no one move and directed Gaddie to empty a teller's cage of its cash and to put it into her hand bag. A third robber, whom the Government contended was Rowan, stood just inside the Bank's entrance. While exiting the Bank, Gaddie and the third robber ignited and threw fire bombs onto the Bank's floor. The three escaped in an automobile driven by co-defendant Charles Bolden, who later pled guilty to one count and testified for the Government that he had driven Appellants to and from the Bank of the day of the robbery.

Each Appellant emphasizes different issues on appeal, and most issues are relevant to only one Appellant.

Appellant Rowan raises two issues, both of which are unique to her. She argues that the Government improperly failed to preserve certain evidence and that there was insufficient evidence to support her conviction.

Her second argument is untenable. Rowan was linked to the robbery by the testimony of several witnesses. Although the jury acquited her on the bank robbery counts, there is evidence that she was the third bank robber who threw a fire bomb onto the Bank floor, that she had planned the robbery, that Charles Bolden (the get-away driver) made the fire bombs in Rowan's apartment the night before the robbery, that spice bottles from her apartment were used to make the fire bombs, that the "wicks" on the bombs were remnants torn from a pillow case found in her apartment, and that open drinking glasses filled with spices were found in a cupboard in her apartment.

Viewing the evidence and drawing reasonable inferences in the light most favorable to the Government United States v. Thomas,497 F.2d 1149, 1150 (6th Cir. 1974); United States v. Scales, 464 F.2d 371, 373 (6th Cir. 1972), we find substantial evidence to support Rowan's conviction for possessing an unregistered destructive device, or for aiding and abetting such offense. The evidence relating to her involvement with the robbery may be used to support her conviction on the possession count, notwithstanding her acquittal on the robbery charges. A jury is free to render inconsistent verdicts or to employ relevant evidence in convicting on one count that it may seem to have rejected in acquitting on other counts. Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932).

Rowan's other argument is also without merit. She complains that federal agents failed to preserve for fingerprinting two glasses and a mayonnaise jar in which spices were found that had been emptied out of the bottles used to make the bombs. Federal agents seized the glasses and jar while executing a search warrant in Rowan's apartment but did not have them fingerprinted.

Rowan's contention is that her fingerprints would not have been found on the items and that this proof would have bolstered her contention that she merely shared an apartment with Bolden, who manufactured the bombs and used them without involving Rowan. She asserts that non-preservation of the fingerprint evidence violated her right to relevant evidence under the Government's control, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

We agree with Appellee that fingerprint evidence from the items would have been of negligible value to Rowan. If her prints had not been found on the items, this would not have negated the substantial evidence that she possessed or aided and abetted the possession of the bombs. She was not charged with making but with possessing a bomb. If her prints had been found on the glasses or jar, she would properly have argued that there were many innocent ways they could have been put there, since they were found in her apartment. See United States v. Collon, 426 F.2d 939 (6th Cir. 1970). Thus, even if we were to view the Government's failure to preserve the items for fingerprinting as suppression of evidence to which Appellant was entitled, we could not reverse the conviction. As we held in Beasley v. United States,491 F.2d 687, 689 (6th Cir. 1974), "The evidence was not exonerating."

Appellant Jackson raises three issues which are peculiar to him. The first concerns the two-jury device used by the District Court.

Jackson requested a separate trial from his co-defendants on two grounds: that photographs of the robbers by the Bank's surveillance camera made a stronger case against Gaddie than against him, which would inflame the jury against him, and that Gaddie was willing to testify that Jackson was not one of the robbers but would not do so before a jury considering her guilt.

The District Court granted severance on the ground that Jackson was entitled to Gaddie's testimony. Since much of the testimony was common to both Jackson and the co-defendants, completely separate trials were not held. Instead, the Court impaneled two juries. One was to consider the Gaddie and Rowan cases, without hearing Gaddie's testimony. The other was to hear the same evidence as the first, but in addition was to hear Gaddie's testimony and to determine Jackson's guilt or innocence.

During the trial, Jackson's counsel announced that he would not call Gaddie after all. Thus, the District Court's reason for impaneling the two juries evaporated. The trial proceeded with two juries nonetheless, and Jackson was convicted on all four counts.

Jackson claims that permitting his jury to hear testimony and to see exhibits related solely to the guilt of his co-defendants denied his right to a fair trial. He claims that only seven of the Government's 25 witnesses gave testimony relevant to the identity of the gunman and that the relatively clear photograph of Gaddie leaving the Bank unduly prejudiced the jury.

Under Rule 14, Fed.R.Crim.P., the question of partial or total severance is within the sound discretion of the trial judge. United States v. Goble, 512 F.2d 458, 465-66 (6th Cir. 1975); United States v. Lee, 428 F.2d 917, 920 (6th Cir. 1970); United States v. Etheridge, 424 F.2d 951, 967 (6th Cir. 1970). Jackson's actions were intertwined with those of his co-defendants, and he cannot claim "cumulation of prejudice by charging defendants with similar but unrelated offenses." United States v. Reynolds, 489 F.2d 4, 6 (6th Cir. 1973), quoting Cupo v. United States, 123 U.S.App.D.C. 324, 359 F.2d 990, 993 (1966). Indeed, what was effectively a joint trial to two juries was appropriate if the entire incident was to be fully explained. The fact that the District Court granted a form of severance for a purpose which disappeared when Jackson chose not to call Gaddie to the stand does not affect the principle that Jackson must show substantial prejudice to override the District Court's discretion in denying complete severance. In fact, the Gaddie-Rowan jury rebutted Jackson's claim of undue prejudice flowing inevitably from the photograph of Gaddie, since it acquitted Rowan of bank robbery. The District Court's discretion was not abused.

We note that this situation differs from the bifurcated trial employed in United States v. Crane, 499 F.2d 1385 (6th Cir. 1974), where one jury was asked to return a verdict as to one co-defendant on a charge of bank robbery, and was then asked to consider the confession of the appellant and to return a verdict as to him on a charge of possessing stolen bank funds. The jury acquitted the co-defendant but convicted the appellant. Although we affirmed the conviction in Crane, because the acquittal of the co-defendant showed that the jury was not prejudiced by trying the appellant along with the co-defendant, we expressed grave misgivings about the general use of bifurcated trials. As we said there, "(J)ustice, not judicial economy, is the first principle of our legal system." 499 F.2d at 1388. Here, there was no testimony against Jackson that would have required a separate trial in the first place, since Gaddie did not take the stand. Accordingly, our concern in Crane does not apply to this case.

A second issue which pertains to Jackson alone concerns a motion to suppress his in-court identification by four Bank employees and a customer, who were shown five different "mug shots" by FBI agents before trial. Appellant argues that his photograph was unduly distinctive and that the procedure gave rise to a substantial likelihood of irreparable misidentification, citing Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). He faults the District Court for failing to hold an...