U.S. v. Taylor

• Decision Date: 03 April 1995
• Docket Number: No. 93-1381,93-1381
• Citation: 54 F.3d 967
• Parties: UNITED STATES of America, Appellee, v. Terrence TAYLOR, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 967

54 F.3d 967

UNITED STATES of America, Appellee, v. Terrence TAYLOR, Defendant, Appellant.

No. 93-1381.

United States Court of Appeals,

First Circuit.

Heard April 3, 1995.

Decided May 17, 1995.

Judith H. Mizner, by appointment of the court, Newburyport, MA, for appellant.

Kimberly S. Budd, Asst. U.S. Atty, with whom Donald K. Stern, U.S. Atty., Boston, MA, was on brief, for U.S.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

A jury convicted defendant-appellant Terrence Taylor on charges that he twice had robbed federally insured banks, and had carried a firearm during and in relation to the second robbery. ¹ Deterrating no reversible error, we affirm.

I. BACKGROUND

Following accepted practice in criminal cases that involve questions of evidentiary sufficiency, see, e.g., United States v. Echeverri, 982 F.2d 675, 676 (1st Cir.1993); United States v. Maraj, 947 F.2d 520, 522 (1st Cir.1991), we limn the facts in the light most congenial to the government.

Appellant and Arnett Lynch, an inveterate bank robber, often used drugs at a hangout in Boston, known euphemistically as "the Spot." On several occasions appellant, emphasizing that he "wanted to learn the ropes," expressed the hope that Lynch would provide tutelage in how to rob banks.

The problem with wishes is that they sometimes come true. Cf. Aesop, The Old Man and Death (circa 550 B.C.) (predicting that "[w]e would often be sorry if our wishes were gratified"). On January 29, 1992, appellant restated his aspirations and mentioned the availability of transportation, telling Lynch that his friend, Lucille Aulmond, had agreed (for ten dollars) to drive him to the downtown area. Lynch and Taylor entered Aulmond's automobile. During the trip, Lynch told appellant that they were going to "do bizank" [a slang term for "bank," according to Lynch's trial testimony] and "rob the 2T's" [a reference to two tellers].

After dropping off a friend, Aulmond, on Lynch's instructions, drove to downtown Boston and parked near the intersection of Clarendon St. and Newbury St. Lynch walked to the corner to check a branch office of Bank of Boston, but found that it had closed for the day. ² When Lynch returned to the vicinity of the parked car, appellant joined him on the sidewalk. The two men then entered a nearby branch of United States Trust Company (UST).

Appellant remained hard by the entrance, watching both the bank's interior and the street. Meanwhile, Lynch strode to the center of the lobby. The manager, Elizabeth Nentwig, asked Lynch if he needed assistance. Lynch proved capable of helping himself; he drew a gun and advised Nentwig that a robbery had begun. Lynch then grabbed a customer's briefcase, approached a teller (Helen Huppoch), and demanded money. He received $2,748 from Huppoch and inserted it into the briefcase. Appellant yelled, "come on, let's go," and the two men sprinted to Aulmond's car.

Once inside the automobile, Aulmond asked what had happened, and appellant responded: "I hit a guy in the face. I punched a guy in the face." Lynch screamed at Aulmond to stop talking and start driving. She complied. After Aulmond made a wrong turn, the men grew impatient, bolted from her vehicle, and completed their escape in a taxi. They then split the spoils, but, there being scant honor among thieves, four men later mugged Lynch and stole his share of the proceeds.

The next day, a man subsequently identified by percipient witnesses as Taylor entered a BayBank branch located at 285 Huntington Ave. in Boston. The man approached a teller's station, shoved aside a customer, Alaina Gurski, and, threatening to shoot Gurski, demanded that the teller, Raya Aruin, hand over her money. The man held an object that both Aruin and Ellen Clavin, a customer service representative working at a nearby teller station, described at trial as a gun. The robber fled after receiving $2,458 from Aruin.

In due season, a federal grand jury indicted appellant for his role in the two robberies. The superseding indictment contained three counts: count 1 charged Taylor and Lynch with committing the UST robbery; count 2 charged Taylor with committing the BayBank robbery; and count 3 charged Taylor with carrying a firearm during and in relation to the BayBank robbery. Lynch entered into a plea agreement and Taylor stood trial alone. The jury found him guilty on all three counts. Following imposition of sentence, Taylor filed this timely appeal.

Taylor's brief contains seven distinct assignments of error. Six of these asseverations--relating, vacuously, to the joinder of counts arising from two separate robberies, the sufficiency of the evidence, and the jury instructions--do not necessitate exegetic treatment. We dispose of these six claims in a decurtate fashion (see infra Parts III-V). We then turn to appellant's most vexing point: his complaint that the prosecutor's closing argument contained improper and prejudicial misstatements, including impermissible comments on his election not to testify. See infra Part VI.

II. THE RAISE-OR-WAIVE RULE

Because many of the assigned errors were not preserved for appeal by timely objections, we pause first to discuss the raise-or-waive rule. In general, the law ministers to the vigilant, not to those who sleep upon perceptible rights. Consequently, a litigant who deems himself aggrieved by what he considers to be an improper occurrence in the course of trial or an erroneous ruling by the trial judge ordinarily must object then and there, or forfeit any right to complain at a later time. The policy reasons behind the raise-or-waive rule are rock solid: calling a looming error to the trial court's attention affords an opportunity to correct the problem before irreparable harm occurs. Then, too, the raise-or-waive rule prevents sandbagging; for instance, it precludes a party from making a tactical decision to refrain from objecting, and subsequently, should the case turn sour, assigning error (or, even worse, planting an error and nurturing the seed as insurance against an infelicitous result). So viewed, the requirement that parties raise contemporaneous objections to improper questions, comments, and the like serves an important purpose in promoting "the balanced and orderly functioning of our adversarial system of justice." United States v. Griffin, 818 F.2d 97, 99-100 (1st. Cir.), cert. denied, 484 U.S. 844, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987); accord United States v. Holmquist, 36 F.3d 154, 168 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1797, 131 L.Ed.2d 724 (1995).

Despite its strength and salience, the raise-or-waive rule is not absolute. But, rescue missions are restricted to the correction of "plain" errors. See United States v. Olano, --- U.S. ----, ----, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993); United States v. Mejia-Lozano, 829 F.2d 268, 273 (1st Cir.1987); Griffin, 818 F.2d at 100; see generally Fed.R.Crim.P. 52(b).

The plain error doctrine concentrates on "blockbusters," to the exclusion of "the ordinary backfires ... which may mar a trial record." Griffin, 818 F.2d at 100. Under it, appellate courts will notice unpreserved errors only in the most egregious circumstances. At a bare minimum, therefore, bevues not seasonably brought to the attention of the trial court must, in order to command appellate intervention, "affect[ ] substantial rights." Fed.R.Crim.P. 52(b).

An unpreserved error is deemed plain (and, therefore, to affect substantial rights) only if the reviewing court finds that it skewed the fundamental fairness or basic integrity of the proceeding below in some major respect. See Griffin, 818 F.2d at 100. As the Supreme Court itself has written, the plain error doctrine applies in those circumstances in which, absent appellate intervention, "a miscarriage of justice would otherwise result." United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 (1982). Given these parameters, it is not surprising that the jurisprudence of plain error invests substantial discretion in the court of appeals. See Olano, --- U.S. at ----, 113 S.Ct. at 1776 (observing that "the decision to correct the forfeited error [rests] within the sound discretion of the Court of Appeals"); United States v. Whiting, 28 F.3d 1296, 1308 (1st Cir.) (same), cert. denied, --- U.S. ----, 115 S.Ct. 378, 130 L.Ed.2d 328 (1994). Even when faced with an apparently plain error, an appellate court "has authority to order correction, but is not required to do so." Olano, --- U.S. at ----, 113 S.Ct. at 1778. For the most part, this discretion should be exercised sparingly, and should be reserved for the correction of those few errors that " 'seriously affect the fairness, integrity or public reputation of the judicial proceedings.' " United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)).

III. JOINDER AND SEVERANCE

Appellant excoriates the government for bringing a single indictment that joined a count relating to the UST robbery with two counts relating to the BayBank robbery. ³ In a similar vein, he calumnizes the district court for refusing to sever the ostensibly incompatible counts. The chastisement is unwarranted.

Although appellant now maintains that the counts were improperly joined, he raises this objection for the first time on appeal. Thus, we afford plain error review. See United States v. Stackpole, 811 F.2d 689, 693 (1st Cir.1987).

Separate offenses may be joined in the same indictment if the charges are "of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Fed.R.Crim.P. 8(a). In determining whether counts are properly combined for trial, we historically have considered...