McDonnell v. United States
Decision Date | 16 February 1972 |
Docket Number | No. 71-1171.,71-1171. |
Citation | 455 F.2d 91 |
Parties | Robert Owen McDONNELL a/k/a Joe Mack, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
COPYRIGHT MATERIAL OMITTED
Charles Thompson, Pierre, S. D., for appellant.
David R. Gienapp, Asst. U. S. Atty., Sioux Falls, S. D., for appellee.
Before VAN OOSTERHOUT, ROSS and STEPHENSON, Circuit Judges.
This is an appeal from a judgment of conviction of Robert McDonnell under an indictment charging him with breaking and entering the Farmers State Bank of Mellette, South Dakota, with intent to commit larceny in violation of 18 U.S.C. § 2113(a). We reverse the judgment of conviction and remand the case for further proceedings consistent with this opinion.
The Farmers State Bank of Mellette was burglarized on May 18, 1969. On May 21, 1969, McDonnell, Danny Ward, and Clarence Byrd were apprehended in Merriman, Nebraska in the commission of a burglary, and a 1968 Plymouth car bearing Idaho license plates was discovered nearby. A search of McDonnell produced the keys to the car, which was then towed to Valentine, Nebraska. The sheriff, James M. Ward, obtained a search warrant on the basis of his affidavit and proceeded to search the car.
On September 5, 1969, McDonnell was charged in United States District Court in Nebraska with entry and attempt at entry of the Bank of Brady, Nebraska. He filed a motion to suppress the evidence taken in the search of the automobile at Valentine, Nebraska herein before mentioned. Judge Urbom sustained the motion in part, denied it in part, and granted the Government ten days within which to file a request for rehearing for the purpose of presenting facts as to whether certain tools were in fact "burglary tools" as set out in the search warrant. United States v. McDonnell, 315 F.Supp. 152, 170-171 (D.Neb.1970). After a subsequent hearing, but before final adjudication of the motion to suppress, the Government dismissed the Nebraska indictment.
McDonnell was indicted in South Dakota in this case on February 11, 1970, at which time he was being held at the Nebraska State Penal Complex at Lincoln, Nebraska on a state charge. On July 21, 1970, McDonnell was arraigned and an attorney was appointed to represent him. Then, on July 27, 1970, that attorney filed a motion to suppress the evidence obtained in the search of the Plymouth car in Valentine on May 22, 1969. The hearing on this motion to suppress was held December 4, 1970, at the conclusion of which the court reserved ruling. On January 21, 1971, the motion to suppress in this case was finally denied. An amended motion to suppress, filed January 25, 1971, was denied orally at the trial which commenced on that date.
At McDonnell's trial in this case, Danny Ward testified on behalf of the Government to the effect that he, Byrd and McDonnell all participated in the burglary at Mellette. However, on cross-examination, he stated that he couldn't state for certain that McDonnell was with him during the Mellette burglary. Certain tools and other items taken from the car in the search at Valentine were introduced into evidence together with McDonnell's shoes and photographs of the footprints at the scene of the crime, all over strenuous objection by Mc-Donnell's counsel. The testimony of Danny Ward, together with photographs of footprints at the scene of the crime and the shoes taken from McDonnell in Valentine were the only items of evidence which directly linked McDonnell to the burglary at Mellette. Near the end of the trial, the defendant placed into evidence the shoes of Danny Ward which were almost identical to the shoes of McDonnell.
On this appeal, McDonnell advances five principal arguments:
At the time of their arrest, four days after the Mellette bank was burglarized, McDonnell and Danny Ward were both wearing shoes of the same type, brand, and approximate size. The shoes, crepe-soled "Porkies by Kinney," were taken from McDonnell and Danny Ward at that time and forwarded to the FBI for analysis. When it became apparent that McDonnell's shoes were to be introduced into evidence together with the photographs of the footprints found at the scene of the crime, McDonnell's counsel, on two different occasions, objected to the the introduction of the shoes and advised the trial court in chambers that the FBI report which had been furnished to McDonnell indicated that the FBI could not specifically connect up the shoes with the footprints. The FBI report, which was read to the court, indicated that while it was not possible to definitely associate the shoe prints with the shoes, the prints submitted were the same design as the shoes taken from both Danny Ward and Mc-Donnell.
Counsel argued to the court that because Danny Ward admittedly was in the Mellette bank at the time of the burglary and was probably then wearing exactly the same type of shoes as those taken from McDonnell in Valentine, in the absence of some proof that the footprints in the photo were from the shoes owned by McDonnell rather than the shoes owned by Danny Ward, the admission of the shoes into evidence was erroneous and highly prejudicial to his client. The trial court overruled the objection and received the shoes.
The only testimony offered regarding the footprints was that of the criminal investigator who had photographed the particular prints because he felt they were "distinctive" and "unique." No attempt was made to compare the photographs of the footprints with the shoes.
In his final argument, the Government prosecutor acknowledged that there was no expert testimony linking the shoes with the footprints and in response to a question posed by Mc-Donnell's attorney as to why no such expert was produced, made the following statement:
Thus, the prosecutor not only implied that expert testimony was available to link up the shoes with the footprints and wasn't produced because of a mistake, but also went ahead and provided his version of that missing expert testimony in his final argument. Earlier, the prosecutor had not challenged the statement McDonnell's counsel read to the court from the FBI report that it was not possible to definitely associate the submitted shoe prints with the shoes.
The Government cites the case of McClard v. United States, 386 F.2d 495 (8th Cir. 1967), as authority for its contention that the shoes and photographs of the footprints were admissible. However, in McClard, the Government had adduced evidence showing that the defendant was in the area of the bank just prior to and subsequent to the burglary; and expert testimony was provided to show that the boot prints found were of the same size, design and had the same wear characteristics as the boot of the defendant. Moreover, there was no evidence to indicate that another person, admittedly in the area, was wearing identical boots.
The Government also relies upon Downey v. United States, 263 F.2d 552 (10th Cir. 1959). In that case, however,...
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