Clark v. United States

• Decision Date: 25 March 1968
• Docket Number: No. 18912.,18912.
• Citation: 391 F.2d 57
• Parties: Troy CLARK, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

391 F.2d 57 (1968)

Troy CLARK, Appellant, v. UNITED STATES of America, Appellee.

No. 18912.

United States Court of Appeals Eighth Circuit.

March 25, 1968.

Robert G. Duncan, of Pierce, Duncan, Beitling & Shute, Kansas City, Mo., for appellant.

Bruce C. Houdek, Asst. U. S. Atty., Kansas City, Mo., for appellee; Calvin K. Hamilton, U. S. Atty., on the brief.

Before VOGEL, Senior Circuit Judge, LAY, Circuit Judge, and BECKER, Chief District Judge.

PER CURIAM.

The appellant, Troy Clark, was indicted by a grand jury in the Western District of Missouri on June 28, 1966, charged with violations of 18 U.S.C.A. § 2113(a) (d), bank robbery.¹ Count I charged that on or about June 30, 1965, appellant entered the Kansas City Bank & Trust Company, Kansas City, Missouri, the deposits of said bank being insured by the Federal Deposit Insurance Corporation, and forcibly took $11,627.00 in money from a named employee, by assaulting and placing the employee's life in jeopardy by using a dangerous weapon, a firearm. Count II charged that on or about August 3, 1965, appellant entered the Baltimore Bank, Kansas City, Missouri, the deposits of said bank being federally insured, and forcibly took $5,734.00 in money from employee Beatrice Goessy and other persons, and assaulted and placed their lives in jeopardy by using a dangerous weapon, a firearm.²

Troy Clark was serving time in the Missouri State Penitentiary, Jefferson City, Missouri, when the indictment in this case was returned. See, State v. Clark, Mo., 1967, 412 S.W.2d 493. He was placed in custody of federal authorities pursuant to a writ of habeas corpus ad prosequendum issued by the United States District Court, Western District of Missouri. On July 29, 1966, Clark entered a plea of not guilty to the charges contained in the indictment, was tried before a jury, found guilty and on June 2, 1967, was sentenced to concurrent terms of fifteen years on each count but consecutive to a forty-five-year sentence for second degree murder being served in the Missouri State Penitentiary. Clark has made timely appeal in forma pauperis to this court, asking that the judgment of conviction be reversed. He has been represented by appointed counsel both in the trial court and here.

Appellant raises four points of alleged error as follows:

"I. The judgment below was based upon identifications that were so questionable that the conviction is not based upon substantial or sufficient evidence and amounts to a denial of due process.

"II. The Court prejudicially erred in admitting in evidence, over appellant\'s objections, Government\'s Exhibit No. 2, being appellant\'s sweater, it being irrelevant and not shown to be connected with the offense charged.

"III. The Court prejudicially erred in refusing appellant\'s request for an instruction that a factor to consider in determining credibility is the witnesses\' opportunity to observe and ability to remember, and in overruling appellant\'s objection to the Court\'s instruction on credibility.

"IV. The Court prejudicially erred in denying appellant\'s motion for mistrial because of the assistant United States Attorney\'s improper argument in his personal belief in the guilt of the appellant."

As previously noted, the court imposed concurrent sentences of fifteen years on each of the two counts. Therefore, the affirmance of either count in the indictment will support the sentence imposed. Lawn v. United States, 1957, 355 U.S. 339, 362, 78 S.Ct. 311, 2 L.Ed.2d 321; Aron v. United States, 8 Cir., 1967, 382 F.2d 965, 972 n. 2; Whitehorn v. United States, 8 Cir., 1967, 380 F.2d 909, 912. In view of this principle, the summary of the evidence upon which the jury found Clark guilty is confined to the second count, the robbery of the Drive-In Branch of the Baltimore Bank of Kansas City. The alleged errors are considered in the order in which they have been stated.³

First, appellant challenges the sufficiency of the evidence. He filed an oral motion for judgment of acquittal at the close of the government's case which was overruled. Specifically, he contends that the identifications of him made by the three Baltimore Bank employees present ruring the robbery were not adequate to support the conviction. In resolving this point, the evidence is viewed in the light most favorable to the prevailing party, the government. Further, the government is entitled to the benefit of all inferences that may reasonably be drawn from the proven facts. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; Whiteside v. United States, 8 Cir., 1965, 346 F.2d 500, 502.

The evidence received discloses that on August 3, 1965, at about eleven o'clock in the morning, just before the noon rush hour, a Negro male, dressed in a white shirt, tie, plaid sports jacket, hat and sunglasses, entered the Baltimore Bank, at 234 West 10th Street, Kansas City, Missouri, the deposits of which were at the time federally insured as defined in 18 U.S.C.A. § 2113(f). At this time the only persons present were the following three bank employees: Mrs. Beatrice Goessy, who occupied the teller's window closest to the door; Mrs. Dorothy Wilson, who was seated at the only other teller's window; and Mr. Thomas Payne, a retired General Services Administration Guard, employed by the bank as a combination guard and janitor, who stayed with the ladies "in case they would want something". The intruder approached the window of Mrs. Beatrice Goessy, stuck a brown folded paper bag on the counter and said, in a low tone, "Fill it up!"

Thomas Payne, upon hearing this, approached, confronted the man, and was threatened with his life by a pistol the intruder produced. Beatrice Goessy then placed all the money in her cash drawer in the paper bag. Barbara Wilson witnessed all of this and then took money out of her cash drawer to fill the bag. After he left, a check of the cash disclosed that the sum of $5,734 had been taken.

Two of the three employees, Mrs. Goessy and Mr. Payne, were able to make a positive identification of the appellant at his trial. Mr. Payne and Mrs. Goessy also identified Clark as being in the bank on the day before the robbery. Mrs. Wilson, at the trial, identified the appellant as resembling the robber "a great deal".

The government also introduced evidence showing that the appellant was in the Kansas City area at the time of the offense and registered in a hotel under an assumed name. Appellant's paramour was a government witness. She testified that appellant had spent money on...