U.S. v. Smith, 88-2817

• Decision Date: 03 November 1989
• Docket Number: No. 88-2817,88-2817
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stan SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 720

888 F.2d 720

UNITED STATES of America, Plaintiff-Appellee, v. Stan SMITH, Defendant-Appellant.

No. 88-2817.

United States Court of Appeals, Tenth Circuit.

Nov. 3, 1989.

Steve Kotz, Asst. U.S. Atty., (William L. Lutz, U.S. Atty., and Paula G. Burnett, Asst. U.S. Atty., with him on the brief) Albuquerque, N.M., for plaintiff-appellee.

William D. Fry, Asst. Federal Defender, Las Cruces, N.M., for defendant-appellant.

Before McKAY, SEYMOUR, and MOORE, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

Petitioner Stan Smith appeals from his conviction of bank robbery in violation of 18 U.S.C. Sec. 2113. Mr. Smith contends that the trial court erred by not giving a cautionary jury instruction regarding the testimony of John Heller, a paid informant and rebuttal witness. After reviewing the trial record, we conclude that even if rejection of the defendant's instruction was erroneous, any error was harmless beyond a reasonable doubt because of the substantial evidence identifying Mr. Smith as the bank robber. Therefore, we affirm Mr. Smith's conviction. Mr. Smith also appeals the sentence imposed by the lower court which departed upward from the Federal Sentencing Guidelines. Because the trial judge did not give adequate reasons on the record for departing from the Guidelines, we vacate and remand for resentencing. ¹

I.

On March 14, 1988, a man robbed the First National Bank in Las Cruces, New Mexico. After stealing a car from a nearby parking lot one-half hour prior to the robbery, the robber, dressed in a coat and tie and disguised by a hat covering most of his forehead, dark glasses, and a moustache, entered the bank and held a pellet gun to a customer's head. He ordered the tellers to put their money in a bag that he was carrying, then left the bank, went into the parking lot, and drove off in the stolen car. The only issue in dispute at trial was the identity of the man who robbed the bank.

At trial, two of the tellers present in the bank lobby identified Mr. Smith as the robber. In a bandit identification form, one teller described the bank robber as a man of Mr. Smith's age. She also picked out Mr. Smith in a photo array provided by the police and identified Mr. Smith in court as the robber. Another teller provided a computer sketch of the robber, picked out Mr. Smith from the photo array, and identified Mr. Smith in court. The bank customer who was threatened by the robber, but did not see his face, testified about his general appearance; however, she was unable to identify Mr. Smith. The woman whose car was stolen and used in the bank robbery provided a computer sketch of the man who stole the car, picked out Mr. Smith from the photo array, and identified Mr. Smith in court as the man who stole her car. In addition, a police officer who was acquainted with Mr. Smith identified him from the photo array and as the man in surveillance photos taken during the bank robbery. A tool salesperson, who had known Mr. Smith for three years, also testified that Mr. Smith was the man in the bank surveillance photos and described the appearance of Mr. Smith on the day of the bank robbery.

For the defense, two other bank tellers who were present in the bank lobby submitted bandit identification forms with descriptions that varied from those given by the prosecution witnesses. In addition, one of these tellers testified that she was unable to identify the robber from the photo array. A teller, who was in the bank vault and not present in the bank lobby during the robbery, identified Mr. Smith because he had been in the bank on several occasions prior to the robbery. Another person also said Mr. Smith had been in the bank on prior occasions with his son. Mr. Smith's former wife testified that although there was a strong resemblance, Mr. Smith was not the man in the bank surveillance photo.

As a rebuttal witness, the government called John Heller, Mr. Smith's next door neighbor, who provided information during the police investigation as a paid informant under the Crime Stoppers program. Mr. Heller testified that on the day before the robbery Mr. Smith told him he intended to rob a bank and his plan included stealing a car, dressing up, wearing a fake moustache or mask, using a pellet gun, and leaving town. On surrebuttal, Mr. Smith's former wife testified that Mr. Smith and Mr. Heller did not have an amiable relationship, and two weeks before the robbery the two men engaged in a pushing match lasting two or three minutes.

During the instructions conference, defense counsel requested that the court give a cautionary instruction for the evaluation of testimony of paid informants. Although the government did not object and the trial judge indicated that he would give the instruction, the "paid informer instruction" was not given. Instead, the court gave another proposed defense instruction which concerned identification testimony.

Mr. Smith filed a motion for a new trial on the ground that the court's failure to give a paid informer instruction deprived him of a fair trial. The court denied the motion, finding that the paid informer instruction was "clearly duplicative" and counsel's request for the paid informer instruction was correctly denied because of its untimely submission and because the jury had been properly and adequately instructed.

At the sentencing hearing, the court departed upward from the Sentencing Guidelines and sentenced Mr. Smith to eighty-four months imprisonment followed by three years of supervised release. ² The district court explained its decision to depart from the Sentencing Guidelines recommended sentence by stating: "The Court in arriving at an appropriate sentence takes judicial notice of the force and violence used by the defendant in committing the offense, which justifies an upward departure from the guidelines." No other explanation or justification was given for departure from the Guidelines.

II.

A harmless error analysis is the threshold standard for evaluation of the district court's failure to give the cautionary jury instruction requested by Mr. Smith. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). "It is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations." United States v. Hasting, 461 U.S. 499, 510, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96 (1983).

In assessing whether the failure to give the jury instruction was harmless error, this court must look at the whole record. Coleman v. Saffle, 869 F.2d 1377, 1389 (10th Cir.1989). In doing so, we must determine whether we can "declare a belief that [failure to give an informer instruction] was harmless beyond a reasonable doubt." Coleman, 869 F.2d at 1389 (citing Chapman, 386 U.S. at 24, 87 S.Ct. at 828).

Based upon a review of the entire record, we conclude that the district court's failure to give the informer instruction was harmless error beyond a reasonable doubt. ³ At trial, there was substantial evidence other than the testimony of Mr. Heller which identified Mr. Smith as the robber. Three witnesses provided descriptions, picked out Mr. Smith from a photo array, and identified him in court. In addition, two witnesses identified Mr. Smith as the man in bank surveillance photographs taken during the robbery. Although defense witnesses created doubt about the identification of Mr. Smith, the government's case was so strong that the verdict could not have been affected by the trial court's failure to give the defendant's requested instruction.

III.

This court reviews sentences imposed under the Sentencing Guidelines according to the statutory standard provided by the Sentencing Reform Act of 1984 and codified at 18...