U.S. v. Johnson

• Decision Date: 24 June 1987
• Docket Number: No. 85-3097,85-3097
• Citation: 820 F.2d 1065
• Parties: 23 Fed. R. Evid. Serv. 261 UNITED STATES of America, Plaintiff-Appellee, v. Harvey R. JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1065

820 F.2d 1065

23 Fed. R. Evid. Serv. 261

UNITED STATES of America, Plaintiff-Appellee, v. Harvey R. JOHNSON, Defendant-Appellant.

No. 85-3097.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 3, 1986.

Decided June 24, 1987.

Robert H. Westinghouse, Seattle, Wash., for plaintiff-appellee.

David B. Bukey, Seattle, Wash., for defendant-appellant.

Appeal from the United States District Court for the Western District of Washington.

Before SKOPIL, FLETCHER and POOLE, Circuit Judges.

FLETCHER, Judge.

The defendant, Harvey Ray Johnson, appeals his conviction for two counts of bank robbery. He contends that the district court erred in (1) admitting evidence of a third bank robbery; (2) denying his motion to sever the offenses; (3) permitting the introduction of evidence seized without a warrant; (4) finding the lineups not impermissibly suggestive; and (5) failing to investigate fully whether the government had in its possession Jencks Act material. The defendant also maintains that he received ineffective assistance of counsel. We affirm.

FACTS

On November 7, 1984, a black man entered a branch of the Savings Bank of Puget Sound and asked a teller to give him a quarter and a nickel for three dimes so that he could make a telephone call. As she complied, he placed a note on the counter which said, "Give me all your money or ..." She stopped reading at that point. She tried to take the note, but the robber took it back. He instructed her not to give him any bait bills, which would trigger an alarm and a surveillance camera. The teller described the robber as wearing an orange ski jacket, knitted brown gloves, and a "cossack type hat."

On February 8, 1985, a branch in Seattle's University District of the United Savings and Loan Association was robbed by a black man, acting alone. The man came into the bank, asked an employee for The teller who was robbed at the Savings Bank of Puget Sound picked Johnson out of a photographic montage on January 23, 1985. The day after the United Savings robbery, one teller positively and one tentatively picked Johnson out of a montage. A third United Savings teller tentatively picked a different photograph.

change in quarters for a $5.00 bill, and left. Approximately five minutes later, he returned, approached another teller, and made the same request. While the teller was getting the change, the man told him to give him all the money. The teller complied with the demand. He was told by the robber not to remove any bait bills. The adjacent teller, who heard the conversation, turned on the alarm. As the robber left the bank, a dye pack that he had been given exploded. This man was described as wearing an orange ski jacket and a dark hat with a brim.

On February 19, 1985, a bank in Tigard, Oregon was robbed by a single black man. He asked a teller for change in quarters for a $5.00 bill. While the teller was making the change, he told her to keep her cash drawer open. He came around the counter and took the money from her drawer and from the adjacent drawer. From the second drawer he also took the bait bills.

The teller described the robber as a black male, 6'3" or 6'4", wearing metal framed glasses and a gold ring, with no stone or jewel. She was unable to make a photo identification. She did, however, later pick the defendant out of a lineup.

The day following the Tigard robbery, Officer Donald McLaughlin of the Oregon State Police arrested Johnson for driving under the influence of alcohol. Johnson identified himself as David Anderson. At the jail, when he was asked to empty his pockets, he produced a large amount of currency, which was put in a sealed plastic bag. Some time later, at the request of FBI Agent Sorenson, Officer McLaughlin unsealed the bag and noted the serial numbers on the bills. He did not obtain a warrant. Five of the bills inventoried were bait bills from the Tigard branch of the Oregon Pioneer Savings and Loan that had been robbed the previous day.

A lineup was held on May 7, 1985, pursuant to a court order. Johnson was the only participant in the lineup who had also been depicted in the photo montage. Two of the tellers who had witnessed the two Seattle bank robberies identified Johnson as the robber; a third teller selected him but said he could not be positive.

Defendant was indicted on three counts of bank robbery, one of which was dismissed. He went to trial for the robberies of the two Seattle banks. Before trial, he moved to suppress the identification on the ground that only he had appeared in both the photo and lineup identification procedures, which he claimed made them impermissibly suggestive. He also attacked the identification made by a United Savings teller because the teller had been shown a surveillance photograph. The court found that the identification procedures were not impermissibly suggestive. The court also denied motions for severance, to exclude evidence pertaining to the Tigard, Oregon robbery, and to suppress physical evidence.

Immediately after suppression hearings, trial began. Defense counsel's strategy was to contest the identifications of the robber by cross-examining the various bank tellers concerning their ability to see his face, the length of time each could see him, and their agitated mental state. At the time the jury was sent to deliberate, Johnson complained to the court of the services rendered by his defense counsel. The court expressed its disagreement. Johnson also renewed his motion for severance, which the court denied.

Johnson was convicted of both counts. His trial counsel was permitted to withdraw, new counsel was appointed, and a timely notice of appeal was filed. The appointed counsel moved for leave to withdraw on the ground that he could not raise any non-frivolous claims on behalf of the defendant. When the motion was granted, new counsel was appointed.

DISCUSSION

1. Evidence of Uncharged Oregon Bank Robbery

Appellant maintains that the district court erred in admitting evidence of the If a court finds evidence admissible under Rule 404(b), it must then find that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice before the evidence is admissible. Fed.R.Evid. 403; see United States v. Bailleaux, 685 F.2d 1105, 1109 (9th Cir.1982) ("[T]he use of such evidence must be narrowly circumscribed and limited" because of danger that defendant will be convicted upon improper inference.).

February 19, 1985 bank robbery in Tigard, Oregon. Appellant does not contest that the evidence was admissible under Rule 404(b); rather he contends that the district court failed to weigh the probative value of the evidence against its unfair prejudice, as required by Rule 403, and that the district court should have found the evidence barred by Rule 403.

Appellant first contends that the district court erred in failing to weigh the Rule 403 factors. In United States v. Sangrey, 586 F.2d 1312 (9th Cir.1978), our court affirmed the district court's admission of evidence of another crime even though the district court neglected to state explicitly that the probative value of the evidence substantially outweighed the danger of unfair prejudice. We held that as long as it appeared from the record that the trial judge performed the balancing required by Rule 403, we would not overturn the court's decision. Id. at 1315. ¹ The court found that the trial court must have performed the necessary weighing because it knew the requirement of Rule 403 and because defense counsel argued the issue of prejudice to the court. Id. In this case, the defendant, in arguing that the counts should be severed, stated before the district court that Rule 403 requires a balancing test after a Rule 404(b) determination of admissibility is made. We find that the district court implicitly balanced the probative value against the prejudicial effect. ²

Appellant argues that even if the district court balanced the factors, it balanced incorrectly. We review for abuse of discretion. Bailleaux, 685 F.2d at 1110. A court measures the probative value of evidence by its " 'tendency to make the existence of any fact that is of consequence ... more probable or less probable than it would be without the evidence.' " Bailleaux, 685 F.2d at 1111 (quoting Fed.R.Evid. 401). The court must consider the degree to which the fact is at issue, United States v. Herman, 589 F.2d 1191, 1198 (3d Cir.1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979), and the need for proving the point by using evidence of criminal conduct. Bailleaux, 685 F.2d at 1112.

Unfair prejudice is measured by the degree to which a jury responds negatively to some aspect of the evidence unrelated to its tendency to make a fact in issue more or less probable, "e.g., that aspect of the evidence which makes conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury's attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged." Id. at 1111. Prejudice will always arise upon the admission of evidence of a defendant's criminal conduct. This prejudice must be included in the calculation together with the prejudice arising from the specific nature of the conduct.

Identity was the primary issue in the cases. The similarity of the modi operandi helps identify the robber. The November

robbery involved an oral request for change of three dimes followed by a written demand for money. The Oregon robbery, committed three months later, involved an oral request for change of a $5 bill followed by an oral demand for money. The modi operandi were even more similar between the February Washington and Oregon robberies. Both involved a request for change of a $5 bill. Prejudice, on the other hand, arises from the opprobrium of a crime involving intimidation. It is heightened concerning the...