Lyda v. United States

• Decision Date: 22 August 1963
• Docket Number: No. 18156.,18156.
• Citation: 321 F.2d 788
• Parties: Gordon Arthur LYDA and Albert Francis Perrault, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

321 F.2d 788 (1963)

Gordon Arthur LYDA and Albert Francis Perrault, Appellants, v. UNITED STATES of America, Appellee.

No. 18156.

United States Court of Appeals Ninth Circuit.

August 22, 1963.

James F. Kirkham, San Francisco, Cal., for appellant Perrault.

Elbert G. Bennett, San Francisco, Cal., for appellant Lyda.

Cecil F. Poole, U. S. Atty., and Terry J. Hatter, Jr., Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before CHAMBERS, HAMLIN and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge.

Albert Francis Perrault was convicted on two counts of armed bank robbery (18 U.S.C. § 2113(a) and (d)), the first count charging a robbery of the MacArthur and 96th Avenue branch of the Bank of America in Oakland "on or about" October 8, 1961,¹ and the second a robbery of the same branch on January 31, 1962. Gordon Arthur Lyda was charged and convicted only under the second count. With one exception, the errors assigned on these appeals are peculiar to each appellant, and we will discuss each appeal separately.

I. The Perrault Appeal

Perrault's first challenge is to the sufficiency of the evidence. The weakness of this challenge is apparent in the manner in which it is phrased — "The evidence tying Mr. Perrault to the crime was unreliable and misleading" — and we find no merit in it.

In both robberies two men entered the bank, one standing guard with a shotgun and the other picking up the money from the tellers' cages. On each occasion partial disguises were worn; hats, false noses, and glasses were used for the first robbery, and silk stocking masks for the second. In the second robbery, a stolen Chevrolet later recovered by the police was used as the getaway car.

Perrault is "tied" to these circumstances by three main bodies of evidence. One McCarter testified that he held the shotgun during both robberies, and that Perrault was his partner in crime. McCarter described the commission of the robberies in great detail, as well as the events leading up to and following them. He was impeached by proof of prior convictions and prior inconsistent statements, and at the time of the trial he was awaiting sentencing on his plea of guilty. Six witnesses identified Perrault in the courtroom as participating in one or both of the robberies. Five of these witnesses were bank employees. The sixth was a shopkeeper who saw three men in the getaway car shortly before the robbery of January 31. Most of the identifications are tentative and some suspicion can be cast upon them, but two at least are more positive. Finally, Perrault's fingerprints were found on the getaway car. This evidence is more than sufficient, "viewed, as it must be, most favorably to the government." (Twitchell v. United States, 9 Cir., 1963, 313 F.2d 425, 429)

Perrault next contends that the prosecutor misled the jury as to the extent to which Perrault was identified with the robberies. His contention is based on the testimony of four witnesses, each of whom was asked to, and did, identify Perrault in the courtroom. Two of the witnesses testified to the repayment of loans by Perrault, the third to his paying a large car repair bill, and the fourth to his purchase of a car for cash, all of the transactions being on or shortly after the dates of the robberies. Evidence of the sudden acquisition of money is usually relevant to prove a crime for which pecuniary gain is the motive (see United States v. Jackskion, 2 Cir., 1939, 102 F.2d 683), but in some cases its probative value may be outweighed by the possibility of confusing and prejudicing the jury. Perrault argues that the identity of the bank robbers was the crucial issue in the case, and that four identifications of him by those with whom he transacted business would influence the jury in evaluating the testimony of the bank employees identifying him as a thief.

The testimony of the four witnesses was brief. The firms they served were identified, and none was a bank. The business context of the testimony was obvious throughout. To find the identifications misleading would attribute to the jury a profound lack of discrimination. There was no error.

Perrault asserts he was denied his constitutional right to trial by jury, alleging that one of the jurors was deaf. As proof he relies upon an affidavit of a fellow-juror, stating that the assailed juror did not initially engage in conversation with other panel members, failed to respond to one question from the judge and one from another juror, and "leaned forward in her seat while the trial was in process and appeared to be straining to hear the words of counsel." Perrault would excuse his failure to raise the matter until after verdict because it was the trial judge who conducted the voir dire, as the rules of the Northern District of California provide.

We need not decide whether the Sixth Amendment would be violated by trial before eleven good men and true and one who is hard of hearing. Section 1861(3) of title 28 disqualifies one who "is incapable, by reason of mental or physical infirmities to render efficient jury service," and failure to abide by the statute would be reversible error. We shall assume that the error was timely raised by a motion for a new trial. (But see United States v. Baker, S.D.N.Y.1868, 24 Fed.Cas. 952 (No. 14,499); compare the state cases collected in Annot., 15 A.L.R. 2d 534) Nonetheless, Perrault cannot prevail.

"The trial court is invested with a wide discretion in determining the competency of the jurors, and the court's judgment in this respect will not be interfered with except for an abuse of the discretion." (Lias v. United States, 4 Cir., 1931, 51 F.2d 215, 217, aff'd per curiam, 1931, 284 U.S. 584, 52 S.Ct. 128, 76 L.Ed. 505; see Beck v. United States, 9 Cir., 1962, 298 F.2d 622, 629 (prejudice); King v. Leach, 5 Cir., 1942, 131 F.2d 8 (advanced age and infirmities)) Half the incidents relied upon to show deafness took place in the courtroom, in full view of the trial judge, one even occurring during a colloquy between the judge and the assailed juror. The affidavit was before the judge on the motion for a new trial, which he denied. There has been no sufficient showing of incompetency as to establish an abuse of discretion by a judge both apprised of the problem and in observation of the juror.

According to Perrault, the prosecutor twice improperly suggested to the jury that Perrault had a police record. On neither occasion did Perrault's counsel indicate to the court with precision that he objected on this ground. However, since counsel for Perrault stated to the court and the prosecutor at the commencement of the trial that he was most anxious to avoid any mention before the jury, "accidently or otherwise," of his client's prior criminal record, we will give the alleged errors closer scrutiny than we might otherwise.

At one point the prosecutor elicited from a witness, an F.B.I. agent, the information that Perrault told him he had been absent from his home the week following the second robbery "to avoid police harassment," and from this it is argued that a jury would infer that only a person with a record would so behave. This would indeed be a strained inference to attach to one short line of testimony; if the jury inferred anything from this avoidance of the police, it would be a consciousness on Perrault's part of guilt of this crime. The probative value of such evidence would be slight (see Vick v. United States, 5 Cir., 1954, 216 F.2d 228), but any error in its admission was waived by failure to object on the ground of irrelevancy.

The prosecutor offered in evidence the fingerprint card used by a criminologist to match up the prints on the getaway car. The fingerprint card was identified by the witness as Perrault's because "his name is recorded on it and also his Oakland Police Department identification number." Perrault's counsel objected on the ground that the card contained extraneous matter — presumably prior arrests or convictions — and stipulated that the prints on the card were those of Perrault. The card therefore was not received in evidence. Since a fingerprint card made after Perrault's arrest had previously been offered and received, it was clear to the jury that the second card predated the second robbery. To infer a police record from the existence of a fingerprint card is conceivable, but not persuasive; fingerprint records exist for former members of the armed forces, most public employees, and, for that matter, members of the Bar of the State of California. The reference to the Oakland Police Department identification number goes a little further, and perhaps had better been stricken, but we cannot see that it so alerted the jury to the blemishes in Perrault's past as to deprive him of his substantial rights. (F.R.Crim.P. 52(a); see United States v. Henderson, 7 Cir., 1950, 185 F.2d 189)

Perrault claims that the trial judge, through his questioning of several witnesses, gave the jury the impression that the court sided with the prosecution. We do not so read the record; further, an adequate cautionary instruction was given.²

II. The Cross-Examination of Defense Witnesses

Both Perrault and Lyda complain of the prosecutor's conduct in cross-examining two defense witnesses, Darrow and Dubey.³ Darrow was put on the stand to impeach the self-confessed accomplice, McCarter. Darrow testified to a conversation in a "holding cell" used by the government, occupied at that time by the appellants, McCarter, Darrow, Dubey, and several others. Perrault allegedly asked McCarter why he didn't reveal the true identity of his fellow robbers, and McCarter is said to have replied that "he couldn't because he was in fear for his family, that they were on the street and so were the others." Dubey's version of the incident is less complete, only that he overheard McCarter say "I can't do that; I might hurt my wife and family," or words to that effect. It might be added that McCarter denied...