U.S. v. Barker

• Decision Date: 01 June 1977
• Docket Number: Nos. 76-1767,s. 76-1767
• Parties: , 1 Fed. R. Evid. Serv. 1333 UNITED STATES of America, Plaintiff-Appellee, v. Phillip Brooks BARKER et al., Defendants-Appellants. to 76-1769.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1013

553 F.2d 1013

42 A.L.R.Fed. 213, 1 Fed. R. Evid. Serv. 1333

UNITED STATES of America, Plaintiff-Appellee, v. Phillip Brooks BARKER et al., Defendants-Appellants.

Nos. 76-1767 to 76-1769.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 6, 1976.

Decided March 22, 1977.

As Amended June 1, 1977.

Carol W. Johnson, Hopkinsville, Ky. (Court-appointed CJA), for defendants-appellants.

George J. Long, U.S. Atty., James H. Barr, Louisville, Ky., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and EDWARDS and McCREE, Circuit Judges.

McCREE, Circuit Judge.

Phillip Brooks Barker, Robert Dale McKee and Perry Duane Caudle appeal from their convictions on both counts of an indictment for violation of 18 U.S.C. § 2113(a), taking money from a FDIC-insured bank by force, violence or intimidation, and for violation of 18 U.S.C. § 2113(d), assaulting or putting lives in jeopardy by the use of a dangerous weapon while committing a violation of 18 U.S.C. § 2113(a). They were convicted by a jury after a five day trial. Because the two counts were merged, all defendants were sentenced, only on the second count, to twenty-five years imprisonment, the statutory maximum. The trial court specifically found that neither McKee nor Caudle would benefit from the provisions of the Federal Youth Corrections Act.

On July 15, 1975, three young black men, carrying firearms, and wearing sunglasses, handkerchief masks and wigs, robbed the Planters Bank of Elkton, Kentucky. They escaped in a red Chevrolet automobile with approximately $40,000. The bank manager's pursuit of that car was halted when an unidentified person in a white Pontiac brandished a shotgun at the manager.

Most of the contentions in this appeal concern the government's efforts at trial to identify these two vehicles and to connect them with appellants.

The red Chevrolet in which the bandits drove away from the bank was found abandoned under a bridge. An automobile salesman testified that shortly before the robbery he had sold the car to a man who called himself Joe Jones. At trial, the salesman identified the buyer as Thomas McKee, brother of defendant McKee. He testified that the buyer gave the address of defendant McKee's great uncle, Frank Waddell.

An FBI fingerprint expert testified that fingerprints of all three defendants were found on the car's rear view mirror. A defense fingerprint expert was permitted by the trial judge to testify that only defendant McKee's fingerprints were on the mirror. However, the court refused to rule that the defense witness was qualified as an expert to present opinion testimony. Instead, it instructed the jury that the witness did not qualify as an expert because his credentials were inadequate. The judge further instructed the jury that it could consider only opinions expressed by an expert.

Defendants McKee and Barker testified that they had "checked out" some used cars about a week before the robbery and that they "could have" touched a rear view mirror at that time.

The FBI obtained fingerprint and handwriting specimens from Thomas McKee for comparison with the fingerprints and signature on the sales receipt for the red Chevrolet. The government introduced no proof that either Thomas McKee's fingerprints or his handwriting were on the sales receipt. It was stipulated that the FBI laboratory report showed that none of the defendants' fingerprints were on the receipt. However, although the FBI fingerprint expert testified that he had compared Thomas McKee's prints with the fingerprints on the receipt, the government apparently failed to produce the report of that examination, in spite of the fact that the defense had obtained an order for its production. Nor did the government's handwriting expert, who failed to identify the writing on the receipt as Thomas McKee's, appear to testify at trial, despite the fact that defendants had subpoenaed him.

The government also showed that the Chevrolet that "Joe Jones" purchased was blue, black and white when he acquired it, and that defendants had been seen with a blue and black 1963 or 1964 Chevrolet. Shortly before the robbery, defendants introduced evidence that Caudle's brother, Kenneth Jagoe, had owned a blue 1964 Chevrolet and had lent it on occasion to Caudle, and had sold the car after the robbery. Jagoe and the person to whom he sold the car identified a photograph of it that showed that the car was still blue.

It was stipulated by the parties that an FBI laboratory report concluded that the "getaway" Chevrolet had been painted with a red enamel. An auto parts salesman testified that defendant Caudle had asked him how much primer paint would be needed to paint a car. The salesman did not himself sell primer paint to Caudle, and he did not know whether or not another salesman in the store had sold anything to Caudle. A government rebuttal witness testified that some primer paints have enamel finishes. The defense subpoenaed the FBI laboratory expert who had prepared the report which was stipulated in evidence. Nevertheless, the witness did not appear to testify.

The government also showed that Barker owned a white 1967 Pontiac. Barker was seen driving his car toward Elkton on the morning before the robbery. Another witness said that he saw a 1968 white Pontiac traveling from the direction of Elkton toward Hopkinsville, where defendants lived An FBI technician who did come from Washington testified that a piece of chrome found along the theorized escape route matched another piece of chrome found in the trunk of Barker's car. A towel found in Barker's car was smeared with red paint, the same color as the paint on the 1964 "getaway" Chevrolet.

on the afternoon following the robbery. There was evidence that the white car ran, out of control, through a fence and into a cornfield along the escape route during that afternoon. The government showed that there were dents in Barker's car after the robbery that had not been there shortly before the robbery. The FBI conducted tests comparing soil and plant fragments found on Barker's car with samples from the cornfield, and comparing the paint on Barker's car with a white substance that had been found on the broken wires of the fence between the cornfield and the road. The results of these tests were inconclusive and reports to that effect were received in evidence by stipulation. Nevertheless, the defendants secured subpoenas to compel the attendance of the laboratory technicians who had prepared the reports, but these efforts were frustrated by the government's failure to honor the subpoenas and the court's failure to enforce them.

Furthermore, on the afternoon of the robbery a local farmer saw a young black man at a location along the theorized escape route changing a tire on a white Pontiac automobile manufactured in the 1960's. The farmer later found four lug nuts at that location. When the police searched Barker's car four days after the robbery, it lacked three lug nuts. Although the farmer was only 25 feet from the man changing the tire, he was unable to make a courtroom identification of any of the defendants.

The government showed that within the two months immediately after the robbery the defendants and some of their relatives had in their possession currency bills, some of them consecutively numbered, which had been shipped to the Planters Bank two weeks before the robbery. More than half of the bills in that shipment had been placed in circulation before the robbery occurred. The bait money and other particular bills known to have been taken from the bank were not recovered.

Although prior to trial no eyewitness had been able to identify any of the robbers, at trial one of the bookkeepers and one of the tellers identified McKee and Caudle, respectively. The bookkeeper had seen newspaper pictures of the defendants after they had been arrested. The teller's identification rested primarily on the fact that Caudle's "very funny, mean, wild look out of his eyes" from the defense table was the same as that of one of the robbers.

During the robbery, one of the bandits was addressed as Butch, which was Caudle's nickname. Caudle testified that he was no longer known by that name. Each defendant testified that he was engaged in a specific activity other than robbing the Elkton bank at midday of July 15, and presented witnesses in support of his alibi.

We have recited the highlights of the evidence in detail in order to emphasize that the government's case was essentially circumstantial, with the exception of the identifications by the teller and the bookkeeper. Neither of these witnesses had seen any of the defendants before the robbery, and neither was able to make a pretrial identification. Because eyewitness identifications by strangers based upon fleeting observations made in stressful circumstances are frequently inaccurate, cf. Levine and Tapp, The Psychology of Criminal Identification, 121 U.Pa.L.Rev. 1079 (1973), the circumstantial evidence linking the defendants to the two "getaway" cars is particularly important.

Accordingly, we consider initially appellants' contentions ¹ that they were deprived of a fair trial when the United States Marshal Because this is a direct appeal, we are concerned, not only with the specific commands of the Constitution and applicable statutes, but also with our supervisory responsibility to assure fair judicial and prosecutorial practices. And our supervisory power requires us to scrutinize with particular care claimed encroachments on areas protected by specific Constitutional safeguards.

failed to properly serve their subpoenas for the FBI laboratory technicians whose test results failed to support the government's attempt to establish that the defendants had bought or used the "getaway" cars, and when the trial judge failed to enforce their subpoenas. They argue that a continuance should have been granted until the government complied with the...