Caples v. United States, 24660

• Decision Date: 06 March 1968
• Docket Number: No. 24660,24795.,24660
• Citation: 391 F.2d 1018
• Parties: Roger Dale CAPLES, Appellant, v. UNITED STATES of America, Appellee. Prentice James CAPLES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

391 F.2d 1018 (1968)

Roger Dale CAPLES, Appellant, v. UNITED STATES of America, Appellee.

Prentice James CAPLES, Appellant, v. UNITED STATES of America, Appellee.

Nos. 24660, 24795.

United States Court of Appeals Fifth Circuit.

March 6, 1968.

W. C. Keady, James L. Robertson, Greenville, Miss., for appellant R. D. Caples.

Philip Mansour, Greenville, Miss., for appellant P. J. Caples.

H. M. Ray, U. S. Atty., Oxford, Miss., for appellee.

Before RIVES and GODBOLD, Circuit Judges, and HUGHES, District Judge.

HUGHES, District Judge:

This is an appeal by Roger Dale Caples and Prentice James Caples from their conviction by a jury on a single count indictment. (Armed robbery of a federally insured bank).¹ We affirm.

The Government's proof demonstrated the following facts:

Shortly after one o'clock the afternoon of September 14, 1966, Mrs. Beatrice White, librarian, arrived at the library in Moorhead, Mississippi. The library was just north of the Bank of Moorhead, hereinafter called Bank, facing on the same street as Bank. She parked next to an automobile with four boys in it. Shortly afterward she saw three of the boys get out of the car and proceed toward the Bank, the driver remaining in the vehicle. Later she saw them running from the direction of the Bank, getting into the car, one saying "Drive, boy, and drive fast." At the trial she was unable to definitely identify either Roger or Prentice Caples, appellants.

After the three boys had gotten out of the automobile they were next seen by Harry Collins, a druggist, in his drug store, which was located adjacent to the Bank. He also observed them looking in the window. At the trial he positively identified the three he had seen as the two Caples and their companion, James Steed.

Two Bank employees, Mrs. Jane Harpole and Mrs. Lillian Moore, and a Bank officer, William A. Topp testified to substantially the same details of the robbery. Steed and the Caples entered the bank and forced the personnel to lie on the floor. Prentice Caples approached one of the teller's windows, pointing a gun at Mrs. Moore, as he cursed and told Mrs. Moore and Mrs. Harpole to get to the floor. Money in the sum of $6,893.00 was taken by Steed from a bank drawer in the teller's cage. The Bank was described as relatively small with an open area of approximately 26 by 34 feet. At the trial Mr. Topp identified Roger Caples and James Steed, and Mrs. Harpole and Mrs. Moore identified both Caples after having described them to the jury.

A customer of the Bank, Mrs. Lula Mae Towery, came into the Bank while the three boys were there. She was commanded to lie down, which she did immediately. She saw only the boy near the door, whom others had identified as Roger Caples. At the trial she described him but was unable to identify him.

As the automobile carrying the boys left Moorhead it was seen by Mrs. Jessie Evans, who was sitting on the curb in front of her house. She described the color of the automobile and identified both Caples boys at the trial as having been in the car.

Shortly after 2:30 in the afternoon a car containing four boys stopped for gas at Luster's Gulf Service Station in Belzoni approximately 25 miles from Moorhead. Luster had had a radio report of the robbery and for that reason he took special note of the boys, taking down the license number. At the trial he described the automobile and identified both the Caples.

An office deputy in the sheriff's office at Indianola testified that the license number taken down by Luster was in fact registered to Steed.

James Steed testified that during the morning prior to the robbery, while the four boys were riding around, the Caples, May and he had discussed robbing this particular bank. He also testified fully with reference to the robbery.

Several of the witnesses testified that the Caples as well as the other two boys had been drinking beer, but none said they were intoxicated or had been drinking heavily. Steed said they had been drinking beer during the morning and had continued to drink after the robbery, but even Luster, who saw them following the robbery, testified that while each had a can of beer in his hand, none appeared to be intoxicated.

The principal contentions of appellants for reversal are (1) that the arrest, search and seizure were illegal and voided the conviction; (2) that the line-up occurring immediately after the arrest was illegal because of failure to give proper warnings to defendants and to give them an opportunity to have an attorney present; (3) that the specific identifications of defendants were erroneously permitted because such indemnifications were tainted by an illegal line-up; (4) that the defendants had no intent to commit the crime and the Court's instructions failed to correctly charge the jury on specific intent and intoxication. In our opinion these contentions are without merit.

With respect to the first, appellants argue that their arrest was illegal because it was based neither upon probable cause nor a warrant, and the arrest being illegal, the search which followed (resulting in the discovery of the stolen money) was violative of the Fourth Amendment. Because of these abridgements of their rights, it is contended, the entire prosecution denied them due process.

It seems to us unnecessary to consider the legality of the arrest or search and seizure, since the government's case was in no way dependent upon them and there was no testimony in connection therewith. The evidence introduced by the prosecution was solely from persons who observed the defendants before or after the robbery and from employees who actually witnessed the robbery. No physical evidence taken from appellants and their accomplices was introduced and no statements of appellants were offered. There can in our opinion be no complaint that either the arrest or search and seizure was illegal.

Contentions (2) and (3) relating to the line-up will be considered together.

Appellants do not argue that line-ups per se are illegal. It is their contention that their being placed in a line-up without having been advised of their right to have counsel present made the line-up illegal.

It is true that the Supreme Court in various recent cases has construed the accused's Sixth Amendment right to counsel to apply to "critical" stages of the proceedings. In Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, it was held that the right to counsel is guaranteed at the point where the accused is being interrogated following requests for counsel and prior to arraignment. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694, announced the principle that the right to counsel attaches "when the individual is first subjected to police interrogation while in custody at the station * * *." In both these cases confessions obtained as a result of the questioning had been admitted in evidence at the trial. In both, the Supreme Court held that without counsel, or without the defendant having been given the opportunity to have counsel the statements were inadmissible.

In this case we do not have the situation which existed in Escobedo or Miranda. In the first place, at the time of the line-up the case had not reached the accusatory stage. Its purpose, as stated by the able district judge, "* * * was to aid the responsible officers in making a determination as to whether this case would, in fact, reach the accusatory stage or not." At the time the Caples were tried no case had held that there was a necessity for the accused to be warned of his right to counsel during its preparatory stage.²

More important, however, in the Caples trial no evidence was introduced that was a product of the line-up. In fact it was not even alluded to by the prosecution or by the defense. Counsel and the trial judge were so careful to keep from the jury any reference to the line-up that they blocked from a statement of Mrs. Moore introduced into evidence, a paragraph dealing with the line-up. Since no use was made of it in the development of the prosecution's case, there is no merit to appellant's contention that conducting the line-up without warning defendants of their right to counsel voided the trial.

Prior to the introduction of evidence bearing on the identification of the defendants by those who had viewed the line-up, appellants' counsel had advised the court of their objection to these witnesses' identifying defendants and had requested a hearing in chambers. This request was granted.

In chambers the evidence revealed that the four boys arrested in connection with the robbery had been placed in a line-up with seven other persons about five o'clock of the afternoon of the robbery, shortly after their arrest. Those in the line-up were of...