U.S. v. Burnette
| Decision Date | 10 February 1983 |
| Docket Number | Nos. 81-1153,s. 81-1153 |
| Citation | 698 F.2d 1038 |
| Parties | 12 Fed. R. Evid. Serv. 898 UNITED STATES of America, Plaintiff-Appellee, v. Lynette BURNETTE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Theresa BURNETTE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Curtis BURNETTE, Defendant-Appellant. to 81-1155. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frank W. Frey, Tucson, Ariz., for Lynette B.
Donn Alpert, Tucson, Ariz., for Theresa B.
Frank R. Zapata, Tucson, Ariz., for Michael B.
John G. Hawkins, Rhonda L. Repp, Asst. U.S. Attys., Tucson, Ariz., for U.S.
Appeal from the United States District Court for the District of Arizona.
Before ELY and NORRIS, Circuit Judges, and BURNS, * District Judge.
On October 24, 1980, the University Branch of Home Federal Savings & Loan Association [hereinafter "Savings & Loan"] in Tucson, Arizona, was robbed. Subsequently, Michael Burnette, Lynette Burnette, and Theresa Burnette were arrested. Michael was charged with armed bank robbery in violation of 18 U.S.C. Sec. 2113(d). 1 Lynette was charged with aiding and abetting armed bank robbery in violation of 18 U.S.C. Sec. 2. Theresa was charged as an accessory after the fact to armed bank robbery in violation of 18 U.S.C. Sec. 3. After a jury trial, 2 all three were found guilty as charged. Each appeals from his or her conviction. For the reasons set forth below, we affirm the convictions of Michael and Theresa but reverse that of Lynette.
On the afternoon of October 24, 1980, the Savings & Loan 3 was robbed by a lone black gunman. The robber took $5,049, including numerous "bait bills" with previously recorded serial numbers. Removal of these "bait bills" also automatically triggered a surveillance camera in the Savings & Loan which photographed the gunman during the commission of the robbery.
The robber was described by various bank employees and customers as being a slim black male approximately six feet tall. The robber was further described as wearing a red ski mask, grey sweatshirt, blue jeans or dark trousers, and tennis shoes. Because of the ski mask, witnesses to the robbery were unable to describe the gunman's face. Photographs taken by the surveillance camera corroborated the witnesses' description of the robber.
As he left the bank, the robber removed his ski mask and fled on foot. A bank customer, Peter Frank, gave chase. As he pursued the robber, Frank threw stones and shouted for assistance. A passing motorist, Larry Hill, heard Frank's cries, saw the chase, and responded by driving his truck into the robber's path. This action forced the robber to pass in front of Hill's truck in order to continue his flight. At this time Hill had a very brief opportunity to see the robber. Hill then left his truck and joined the pursuit of the fleeing robber. As Hill closed the distance between them to approximately four feet, the robber turned, removed a chrome-plated revolver from the bag he was carrying, and fired a shot at Hill. Hill quickly dropped to the ground and the bullet missed. Prior to falling to the ground, however, Hill had an opportunity to view the robber's face for approximately four seconds.
Frank continued his pursuit and saw the robber enter a waiting automobile occupied by two other black persons. Frank, an automobile mechanic, described the vehicle as a late model, "white over blue" Buick. Frank ran after the fleeing car for a short distance, shouting to passing motorists and pedestrians and requesting that they note the license number of the vehicle. Evelyn Cline heard Frank's shouts and responded by following the white and blue Buick. Cline was able to see the license plate on the car and made a written notation of the number. The license plate was issued by the state of Nevada and bore the number "TFG 162." A description of the robber, the car, and the license number was broadcast over the police radio.
The Buick bearing the above described license plates was seen approximately one hour later at the Tucson Inn by Sgt. Paul Hallums of the Tucson Police Department. As he approached, Sgt. Hallums saw two black females near the car. One, later identified as Lynette Burnette, was near the driver's door and appeared to be brushing the door handle. The other female, later identified as Theresa Burnette, was near the rear of the car and appeared to be removing the license plate. Sgt. Hallums then went to a concealed location in order to observe further the actions of Lynette and Theresa. After a short time they appeared to notice his presence and walked toward Room 123 of the Tucson Inn. One of them briefly stepped inside Room 123 and then both walked back towards the Buick. Shortly thereafter, they were followed by a black male later identified as Michael Burnette. Michael started toward the car, looked around, and then ran into an alleyway. He was later found hiding in a nearby dumpster. Theresa remained near the car and was apprehended there. At the time of her arrest, Theresa had in her possession a key to Room 123 of the Tucson Inn and two screws that fit the rear license plate bracket of the Buick. 4 Lynette started to leave the motel complex. Upon seeing this, Sgt. Hallums broadcast a description of Lynette along with a request that she be stopped.
Officer James Williamson, also of the Tucson Police Department, had been monitoring the police radio broadcasts and had heard Sgt. Hallums' description of Lynette and his account of her activities. Officer Williamson saw Lynette and, pursuant to Sgt. Hallums' instructions, stopped her. Upon being stopped, Lynette spontaneously stated that "I just found this purse." Officer Williamson then asked Lynette for identification. From the side pocket of the purse she claimed to have just found, Lynette produced a traffic court summons bearing the name "Lynette Burnette." Officer Williamson then asked Lynette for identification bearing her photograph. Lynette stated that her identification was in her wallet and that her wallet was in "her purse." Officer Williamson asked Lynette how her wallet came to be in a purse that she had "just found." Lynette replied that she had "just slipped" the wallet into the purse. At this point, Officer Williamson, noting Lynette's furtive conduct, and fearing that she was about to run, ordered her to sit on the curb and placed her under arrest. Lynette complied and Officer Williamson renewed his request for photographic identification. Lynette started to open the purse, then quickly closed it. She then stood, turned away from the officer, and once again began to open the purse. Officer Williamson, fearing that Lynette was attempting to withdraw a weapon, moved around Lynette to see what she was doing. He saw her withdraw something "small and black" from the purse and also noticed that the purse was "obviously stuffed" with money. Officer Williamson seized the purse and placed Lynette in handcuffs. 5 Officer Williamson then handed the purse to another Tucson police officer who had arrived on the scene, Officer Strickland. Officer Strickland completed the opening of the purse and found it to contain a large sum of money. Later, at the police station, the purse was more thoroughly searched and its contents inventoried. The purse was found to contain $5,048. Among the money found in the purse were the "bait bills" taken from the Savings & Loan.
Search warrants were obtained for the Buick used in the commission of the robbery and for Room 123 of the Tucson Inn. A search of Room 123 disclosed a chrome-plated .357 revolver containing four live rounds and one spent cartridge, money bands taken from the Savings & Loan, and two Nevada license plates bearing the number "TFG 162." 6 A pair of white surgical gloves similar to those used by the robber was found in the Buick.
Upon learning that a suspect had been apprehended, FBI Agent Lawrence Bagley contacted Larry Hill and asked Hill if he could identify the man who had fired at him. Hill stated that he could and agreed to accompany Bagley to the Tucson Inn to view the suspect. Upon arrival at the Inn, Hill saw a black man in handcuffs. 7 Hill was not asked to identify this man but later testified that he was immediately aware that the handcuffed man at the Inn was not the person who had shot at him. Hill then accompanied Bagley to the Tucson Police Station. When they arrived at the station, Hill saw a handcuffed black male seated in the rear of a police patrol car. Without prompting or questioning by Bagley, Hill immediately recognized this man as the person who had shot at him earlier in the day.
The case went to trial before two juries. 8 All three defendants were found guilty as charged. Each appeals. Michael contends that the District Court erred in denying his motion to suppress the identification testimony of Larry Hill. Lynette contends that: (1) The District Court erred in denying her motion to suppress the evidence seized from her purse; and (2) the District Court erred in failing to instruct the jury that she could not be convicted of aiding and abetting armed robbery unless she knew that Michael was armed. 9 Theresa contends that: (1) The District Court erred in permitting Sgt. Hallums to testify that Theresa was "removing" the rear license plate from the Buick; (2) the evidence was insufficient to establish that she was an accessory after the fact to armed bank robbery; and (3) the District Court improperly instructed the jury regarding the elements of being an accessory after the fact to armed bank robbery.
Michael's sole contention on appeal is that the District Court erred in denying his motion to suppress the pretrial and in- court identification testimony of Larry Hill. Michael argues that the pretrial "showup" at which he was identified by Hill was conducted in such an unnecessarily...
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