Cline v. United States

• Decision Date: 22 May 1968
• Docket Number: No. 18942.,18942.
• Citation: 395 F.2d 138
• Parties: John Francis CLINE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

395 F.2d 138 (1968)

John Francis CLINE, Appellant, v. UNITED STATES of America, Appellee.

No. 18942.

United States Court of Appeals Eighth Circuit.

May 22, 1968.

D. M. Statton, Boone, Iowa and Don J. Wilson, West Des Moines, Iowa, for appellant.

Claude H. Freeman, Asst. U. S. Atty., Des Moines, Iowa, for appellee; James P. Rielly, U. S. Atty. and Jerry E. Williams, Asst. U. S. Atty., Des Moines, Iowa, on the brief.

Before VAN OOSTERHOUT, Chief Judge, BLACKMUN, Circuit Judge, and VAN PELT, District Judge.

VAN OOSTERHOUT, Chief Judge.

Defendant John Francis Cline was indicted on a charge of robbing by force the federally insured Kellogg Savings Bank of Kellogg, Iowa, on or about February 14, 1967, taking $16,054 in money, and further charging that defendants in committing such act did assault and put in jeopardy the lives of Raymond W. Welle and Pauline Welle by use of dangerous weapons, to wit, pistols, in violation of 18 U.S.C.A. § 2113(d). Gerald George Weir and David Lee Grandstaff were jointly indicted with the defendant upon such charge.¹

Cline, who will hereinafter frequently be referred to as defendant, entered a plea of not guilty. His motion for a separate trial was granted and he was tried and convicted by a jury. His post-conviction motions were overruled. Cline was sentenced to fifteen years imprisonment with the provision that he be eligible for parole at any time under 18 U.S.C.A. § 4208(a) (2). This is a timely appeal from such conviction and sentence.

At all times here material, Raymond Welle was cashier and his wife, Pauline Welle, was assistant vice president of the Kellogg Savings Bank, a federally insured bank. About 9 p. m. on February 13, 1967, three men carrying pistols entered the Welle home at Kellogg, Iowa. Mrs. Welle was then at home alone. Mr. Welle, who had been working in the bank that night, returned home about 10 p. m. and was met at the door by one of the intruders armed with a gun. Mr. Welle was forced to go to the bank and open the cash vault. He was accompanied by Weir. Cline and Grandstaff remained at the Welle home keeping Mrs. Welle under surveillance. The Welles were told, "I have got a gun, don't do anything.", and were further told if Weir was not back within twenty minutes with the money, "It is going to be bad for Mrs. Welle."

The vault at the bank was opened; Weir took the contents amounting to $16,054. Weir and Welle returned to the Welle home. The Welles were tied hand and foot and adhesive tape was put over their mouths, whereupon the robbers left with the stolen money. It was past midnight when they left.

The robbers did not wear masks. Each wore gloves at all times. Cline wore a stocking cap which was pulled down over his sideburns and ears. Cline, Grandstaff and Weir were each positively identified by both Mr. and Mrs. Welle as the intruders. Cline was identified by his general size and appearance, his body build, his nose and mouth, his long pointed chin and his rough complexion from which it appeared he had some kind of skin trouble. Additionally, Mr. Welle who heard Cline testify identified him by his voice.

Cline testified as a witness. He admitted knowing about the contemplated robbery but denied knowledge of the exact time thereof or any participation therein. His testimony, supported by alibi witnesses offered, was that he was at the George Weir home in Des Moines at the time of the robbery, such home being at a considerable distance from Kellogg. He testified that he arrived at the George Weir home about 9 p. m. and that he spent the rest of the night there. Such testimony was supported by various alibi witnesses, most of whom were related to or connected with one or more of the indicted defendants.

Cline testified that Weir, Grandstaff and Mike See, whom Cline claims was the third robber rather than he, returned to the Weir home about 2 a. m. on February 14 and that they had with them a bag of money which they counted out in the amount of $16,000. Defendant testified that he then played poker with the robbers.

George Weir left for California on the morning of February 14 and upon arrival stayed at the home of his brother Larry. Cline as a witness stated that on February 15 he received information from a friend that the FBI wanted to interview him. He flew to California the next day, using an assumed name. Upon arrival there, he went to Larry Weir's home where George Weir was staying. Cline and George Weir were arrested at the Larry Weir home on February 18. The evidence will be discussed further to the extent necessary during the course of the opinion.

Defendant Cline urges that he is entitled to a reversal of his conviction by reason of the following asserted errors committed at his trial:

I. The prosecution's attack upon defense counsel's honesty.

II. The Welles' identification of the defendant while in a cell in jail in violation of defendant's Fifth and Sixth Amendment rights.

III. The allowance of evidence concerning defendant's exercise of his right to remain silent.

IV. The admission in evidence of a large sum of money in George Weir's billfold at the time of his arrest without proof of Weir's prior impecuniosity.

V. The overruling of defendant's motion for acquittal based upon insufficiency of the evidence to support a conviction.

VI. The refusal of the court to require the Government to produce a report made by FBI Agent Bugas covering his investigation of the case.

A careful study of the record in this case satisfies us that the court committed no prejudicial error in defendant's trial and that the judgment should be affirmed. The reasons for such conclusion are set out in our discussion hereinafter of the points urged, in the order above stated.

I.

During the course of the redirect examination of Mrs. Welle, government counsel gave the witness some type of writing and asked her to read a specified portion thereof, and indicate how she identified the defendant by means of a picture of him. Defendant's counsel on cross-examination had attempted to use prior claimed inconsistent testimony to shake the identification. Defendant objected to the question, whereupon the following colloquy took place:

"MR. FREEMAN: You employed something other than complete honesty!

MR. WILSON: Your Honor, I move for a mistrial on that point.

THE COURT: Well, you can argue your case later.

MR. WILSON: I have never been accused of anything improper in court in my life.

THE COURT: Well, now, gentlemen, you are not going to argue your case now. You can argue it later. Get your exhibit back and let the witness testify from her memory. That\'s all we expect of her."

The trial court in effect sustained the objection to the question and overruled the motion for mistrial. At the close of all the evidence, defendant renewed his motion for mistrial upon the ground of the prejudicial effect of the remark heretofore set out and upon other grounds. In overruling the motion, the court stated:

"The Court does not consider that there were any comments of plaintiff\'s counsel here that were prejudicial. There was a certain amount of discussion between counsel sometimes in the heat of battle. However, I found nothing and I find nothing offensive in this record in that regard."

We consider the criticized remark of the prosecutor to be an improper one and we feel that the trial court might well have admonished the jury to disregard it. No request for an admonition was made.

We have recognized that counsel in the heat of battle often say things that should not have been said and that the prejudicial error test should be applied in determining whether such conduct has resulted in such unfairness and prejudice as to deprive defendant of a fair trial. See Keeble v. United States, 8 Cir., 347 F.2d 951, 956; Isaacs v. United States, 8 Cir., 301 F.2d 706, 737.

Considerable discretion must be left in the trial court who saw and heard the entire proceeding and thus had the feel of the case in determining whether an asserted error is prejudicial. Cochran v. United States, 8 Cir., 310 F.2d 585, 589; Isaacs v. United States, supra. We are not persuaded that the isolated remark of the government attorney made early in the trial had any substantial effect upon the verdict of the jury. The trial court did not abuse its discretion in denying the motion for a mistrial.

II.

Mr. and Mrs. Welle were taken to the jail cell in which defendant alone was confined for the purpose of determining whether they could identify the defendant as one of the bank robbers. Prior to that time, the Welles had been shown some pictures, including that of the defendant in a high school annual and some blown up pictures of the defendant. Defendant was not represented by counsel in such proceeding nor was counsel waived. Defendant was not exhibited in a lineup. Defendant urges that such confrontation violates rights guaranteed by the Fifth and Sixth Amendments to the United States Constitution under the teaching of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L.Ed.2d 1199. Such cases were all decided on June 12, 1967. Stovall squarely holds that the right to be represented by counsel at lineup proceedings, which right was established by Wade and Gilbert, applies only to confrontations for identification purposes conducted in the absence of counsel after June 12, 1967. Defendant was convicted by a jury on May 26, 1967. Consequently, the Sixth Amendment defense based on right to counsel at the lineup is not open to the defendant.

Still open, however, is defendant's right to prove "that the confrontation resulted in such unfairness that it infringed his right to due process of law." Stovall v. Denno, supra, at 299, 87 S.Ct. at 1971. The confrontation must be "so unnecessarily suggestive and conducive to irreparable mistaken identification"...