Osborne v. U.S., s. 76-1154

• Decision Date: 19 October 1976
• Docket Number: 76-1158,Nos. 76-1154,s. 76-1154
• Citation: 542 F.2d 1015
• Parties: , 1 Fed. R. Evid. Serv. 362 Michael Eugene OSBORNE, Appellant, v. UNITED STATES of America, Appellee. Roger Lee PARKER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1015

542 F.2d 1015

36 A.L.R.Fed. 555, 1 Fed. R. Evid. Serv. 362

Michael Eugene OSBORNE, Appellant, v. UNITED STATES of America, Appellee.

Roger Lee PARKER, Appellant, v. UNITED STATES of America, Appellee.

Nos. 76-1154, 76-1158.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 13, 1976.

Decided Oct. 19, 1976.

Thomas P. Howe, Walsh, Howe & Ebert, Clayton, Mo., for appellant, Michael Eugene Osborne.

Forriss D. Elliott and Richard A. Fredman, St. Louis, Mo., for appellant, Roger Lee Parker.

Barry A. Short, U. S. Atty., and Richard A. Heidenry, St. Louis, Mo., for appellee, United States.

Before GIBSON, Chief Judge, MARKEY, ^* Judge, and STEPHENSON, Circuit Judge.

MARKEY, Chief Judge, Court of Customs and Patent Appeals.

Parker and Osborne appeal from their joint conviction by jury of bank robbery in violation of 18 U.S.C. § 2113(a), (d). ¹ Osborne seeks reversal of his conviction on two grounds: (1) that the trial court erred in excluding evidence showing that the government's key witness had a bad reputation for truth and veracity; and (2) that the trial court admitted hearsay testimony by Osborne's mother. Parker, in addition to the first ground above, complains that the trial court erred: (1) in refusing a proffered identification instruction to the jury; (2) permitting premature character evidence tending to bolster the testimony of its key witness prior to attack; (3) in allowing extrinsic evidence; and (4) in allowing testimony of an experiment. We affirm.

Background

The government's key witness, Douglas, testified that the defendants discussed with him the possibility of robbing the bank some six months prior to the time the robbery actually took place. In preparation for the robbery, Parker obtained rubber masks and surgical gloves ² and, with Osborne and Douglas, stole a tan Buick automobile. The automobile was secreted in a secluded area a short distance from the target bank and was to be the getaway vehicle. Four days prior to the actual robbery, Parker, Osborne and Douglas met in the secluded area, donned the rubber masks and gloves, and drove to the bank. With Douglas waiting in the car, Osborne and Parker approached the bank carrying shotguns under their coats. Before reaching the bank, they realized that they had been spotted and beat a hasty retreat. The three men returned to the Buick. Douglas testified that he wished to withdraw from the plan and intentionally left on the lights of the car to run down the battery, thus disabling the car for any further attempt. Douglas did not tell either Parker or Osborne about the lights. Witnesses testified to seeing the vehicle parked in the secluded area Friday evening through Sunday preceding the actual robbery. Another witness testified to seeing Parker in the vicinity of the stashed car on the day preceding the robbery. On the morning of the robbery, Douglas testified, Parker and Osborne approached him concerning another attempt on the bank. Douglas refused. That afternoon the bank was robbed by two men wearing rubber masks and surgical gloves brandishing a shotgun and a handgun. A local resident observed that a robbery was in progress and, after attempting to shoot out the back tires of the fleeing vehicle gave chase. ³

A witness testified to seeing a tan Buick stopped in the road some distance from the bank and a man running across the road to a blue station wagon. The witness observed that the driver of the Buick was wearing a rubber mask. The Buick continued down the road and was spotted by a Highway Patrolman who gave chase until the Buick crashed out of control on the side of the road. The Patrolman observed a man running from the crash, however, he was unable to apprehend him. The fleeing subject did, however, drop his jacket containing a book of matches. These matches were later identified as having been given to Parker by a local business concern. ⁴ Subsequent investigation revealed that a cardboard box and wrapping paper found in the crashed vehicle bore the latent fingerprints of Parker and Douglas, respectively. The box and paper matched those used for the rubber masks. Other witnesses testified to seeing automobiles matching the description of automobiles previously driven by Parker and Osborne ⁵ in the vicinity of the stashed Buick on the morning of the robbery. Two witnesses identified Parker as being the driver of one of the cars. Another witness testified to having loaned jumper cables to Parker and Osborne on the morning of the robbery.

OPINION

Appellants' joint contention centers around the trial court's refusal to allow a defense witness to testify regarding Douglas' reputation for truth and veracity in the community. Appellants argue that Douglas' testimony was crucial to the government's case and that his credibility was open to question. The proffered testimony, according to appellants, would have indicated that Douglas' reputation in the community for truth and veracity was not good.

We, of course, agree with appellants that Fed.R.Evid. 608(a) ⁶ specifically provides that the credibility of a witness may be attacked by evidence of reputation. We have long recognized that testimony relating to the reputation for truth and veracity in the community of a witness is relevant and therefore admissible. Swafford v. United States, 25 F.2d 581 (8th Cir. 1928). In the broad, general sense of the Rule, therefore, the trial court erred in excluding appellants' proffered testimony. The question remains, however, whether that error was of such prejudicial nature as to warrant a new trial. If exclusion of the evidence was harmless error, a new trial should not be ordered. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), Fed.R.Crim.P. 52(a).

We are convinced that the exclusion was not prejudicial. Douglas himself testified to his implication in the first robbery attempt, to his experimentation with drugs, and to his undesirable discharge from the Army. He further admitted that the United States Attorney's Office would recommend dropping the charge ⁷ against him for testifying at the trial. ⁸ Parker effectively corroborated Douglas' testimony regarding his implication in the prior attempt. Thus the excluded testimony could only have been cumulative at best. ⁹

Parker assigns as error the trial court's refusal to grant a proposed jury instruction regarding identification, urging us to adopt the model instruction of United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (1972). We have previously considered the model identification instruction proposed in Telfaire ¹⁰ and agreed that it may have application in cases involving eyewitness identification. In the present case, however, no question of identification at the scene of the crime was presented. There was no error in refusing a superfluous instruction.

During direct examination, Douglas was questioned regarding his whereabouts directly prior to and during the crime. He testified that he picked up his girl friend from work at 1:00 for lunch and returned her to work at 2:00 thereafter picking up his sister from work at 2:20. The robbery occurred at 1:15. Defense counsel characterizes this testimony as a "bolstering" of Douglas' testimony before his credibility had been put into issue.

We have recognized the general rule to be that "until the reputation of a witness for truth and veracity has been assailed by evidence in relation to it, it is not in issue, and that there accordingly exists in such a situation no right to introduce testimony in support of it." Homan v. United States,279 F.2d 767, 772 (8th Cir. 1960), cert. denied, 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960). The basis for the rule is a legal presumption that witnesses are of good moral character and that, absent evidence to the contrary, no purpose is served in denying evidence of bad character. 4 Wigmore, Evidence § 1104 (Chadbourne rev. 1972), McCormick, Evidence § 49 (2d ed. 1972). Fed.R.Evid. 608(a), the Notes of the Advisory Committee on the Proposed Rules are in accord:

Character evidence in support of credibility is admissible under the rule only after the witness' character has first been attacked, as has been the case at common law.

This rule is inapplicable to the testimony challenged here, however. Establishing the whereabouts of Douglas preceding, during and after the crime was background evidence relating to the actual robbery. This testimony was relevant to show that while Douglas was initially involved in planning the robbery, he withdrew from the venture and established his complete withdrawal by detailing his...