Scott v. Jones, 88-1930
| Citation | 862 F.2d 1311 |
| Decision Date | 18 January 1989 |
| Docket Number | No. 88-1930,88-1930 |
| Parties | Arlester E. SCOTT, Appellee, v. Jim JONES, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Patrick L. King, Asst. Atty. Gen., Jefferson City, Mo., for appellant.
Lawrence M. Berkowitz, Kansas City, Mo., for appellee.
Before JOHN R. GIBSON, WOLLMAN and BEAM, Circuit Judges.
Jim Jones appeals from an order of the district court granting Arlester E. Scott's petition for habeas corpus. We stayed execution of the writ on July 13, 1988, and heard oral argument on August 17, 1988. We now reverse.
Scott's petition contends that he has been twice tried for the same crime in violation of the double jeopardy clause of the United States Constitution. Petitioner Scott claims that the double jeopardy clause barred his state court retrial because the Missouri Court of Appeals determined that there was insufficient evidence to support the submission of his case to the jury at his initial trial.
We do not agree that the Missouri appeals court made such a finding. Additionally, we believe that a second appeals court opinion, rendered after Scott's retrial, cleared up any ambiguity that may have existed in the first opinion. Thus, the double jeopardy clause did not bar the second trial.
Petitioner was convicted of robbery in the first degree on October 21, 1981, after a four day jury trial. The central question at that trial was whether petitioner was the taller of the two men who robbed a Milgram's Food Store.
On March 27, 1981, two men entered the Milgram Food Store in Jackson County, Missouri. One was tall. One was short. Both were black. The taller robber was carrying a grocery sack at the time he entered the store. The men stopped at the dairy case and pretended to shop.
Donald Gruis, the store manager, had just come on duty when the two men entered. As they were shopping, he went into the "back office." Prior to his returning to the back office, it appears that Wells Fargo had made a delivery of currency to the store. The currency had been placed in time locks located in the office. There was also a safe.
While Gruis was in the back office, employees Frank Starforth and Kathleen Jackson were having lunch in the employee "break" room which was adjacent to the office. The two men entered this room. The taller man withdrew a pistol from a bag. Within seconds they had both employees face away from them. The robbers then forced them into the back office where they encountered Gruis.
Once everybody was in the back office, Jackson and Starforth were ordered to lay on the floor. Duct tape was used to bind their hands behind their backs. Gruis, however, was permitted to remain standing in order to open the safe.
During this episode, another employee, Leonard Tripp, appeared. He was treated in the same manner as Jackson and Starforth. After the robbers finished the theft, they bound up Gruis's hands and departed. The entire robbery lasted from 5 to 10 minutes.
The state offered two pieces of evidence in support of its contention that petitioner was the taller robber. It submitted, as an exhibit, an empty carton that is alleged to have contained the duct tape used by the robbers. This container had petitioner's fingerprints on it. The state also presented eyewitness identification testimony through store manager Donald Gruis.
Petitioner raised 11 points of error in his first appeal to the Missouri Court of Appeals. As indicated, however, the issues relevant to this proceeding concern only those dealing with the admissibility of the duct tape carton and the weight and sufficiency of the identification testimony of Gruis.
The police criminal investigator was on vacation and did not testify at the first trial. Instead, the state called two previously undisclosed witnesses to lay foundation for admission in evidence of the duct tape carton. The Scott I court held that permitting the previously unrevealed witnesses to testify was reversible error. The appeals court further stated that the carton was inadmissible even with the testimony of the two undisclosed witnesses. And, for purposes of this appeal, we shall assume that Scott I properly found that the duct tape carton was inadmissible with the foundational evidence.
Petitioner in his brief in Scott I contended that once the duct tape carton was removed from consideration, there was only Gruis's identification testimony that linked petitioner to the robbery. Petitioner's brief recognized, however, that under Missouri law, Gruis's testimony was sufficient to warrant submission of the case to the jury. The brief then asked the court to reconsider Missouri law, and to treat the question of identification as one of sufficiency, and not weight.
Petitioner now contends that Scott I did find the Gruis identification insufficient, as a matter of law, and by implication, overturned past Missouri case law by deciding that identification testimony presents a sufficiency question subject to appellate review. The district court agreed with petitioner's analysis of Scott I.
As indicated, the district court found that the Scott I court believed that Gruis's identification testimony, standing alone, was insufficient to submit the state's case to the jury. In interpreting an opinion of the appeals court of Missouri, the district judge made a determination of law. We give great deference to a resident federal judge's interpretation of the law of the state in which he sits. Cf. Kansas State Bank v. Citizens Bank, 737 F.2d 1490 (8th Cir.1984) (). However, we are not bound by such interpretation and must reverse if we believe the judge was in error. Id. This is such a case.
A. Interpretation of Scott I
The double jeopardy clause precludes a second trial once a reviewing court has found the evidence adduced at the first trial legally insufficient. Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150-51, 57 L.Ed.2d 1 (1978). The question before us is whether Scott I found that Donald Gruis's identification of petitioner as the taller robber--without any evidence of the duct tape carton--presented a case so lacking in proof that it "should not have even been submitted to the jury." Id. at 16, 98 S.Ct. at 2150 (emphasis in original). We do not believe it made such a finding.
At the first trial, Gruis testified that he had seen the taller robber at least three times in the store on dates prior to the robbery. During the robbery, he looked at the taller robber's face at least 3 minutes, from a distance between 3 1/2 and 4 feet. The lighting conditions were bright. He remembered the taller robber as having abnormal lips, bug eyes, short hair, and a full beard. He thought petitioner was the taller robber. His reason for so thinking was that petitioner had the same characteristics. He quantified the certainty of his identification as being at least ninety percent. He stated that he could not be one hundred percent positive because the robber was bearded and petitioner, at trial, was not.
Missouri cases have held that a tentative and uncertain identification of a defendant, such as testimony that the defendant looks like, looks similar to, or resembles the person seen at the scene of the crime, is sufficient to allow the question of identity to go to the jury, even if this is the only evidence available which links the defendant to the crime. The question becomes one of the weight to be given the evidence by the jury as opposed to one of sufficiency of the evidence to permit jury consideration. See State v. Franke, 159 Mo.App. 535, 60 S.W. 1053, 1054 (1901); State v. Brown, 542 S.W.2d 789, 791 (Mo.App.1976). The competency of identification testimony is not affected by the witness's failure to testify positively about the identity. State v. Maxwell, 502 S.W.2d 382, 391 (Mo.App.1973). In instances of face to face robbery, the issue of identity is for the jury to decide and Missouri appellate courts are not to delve into a determination of the weight in such circumstances. See id. at 390.
We believe that Scott I did not depart from the above principles. Initially, the Missouri court opened its opinion by reversing because of "prejudice to the defendant when the state was permitted to call two witnesses not disclosed to the defense in pre-trial discovery." 647 S.W.2d at 603. The court then detailed the evidence "to compose the setting in which the testimony by the unendorsed witnesses was proposed." Id.
Petitioner relies on the following excerpts to establish that the court adopted his position that Gruis's testimony was insufficient as a matter of law:
The store manager testified he thought Scott was the man but he was uncertain because the taller robber was bearded while, at trial, Scott was clean shaven. The three other employees expressed no opinion on identification of the robbers at all. Scott's implication in the crime rested entirely on a fingerprint comparison.
In discussing why the state's failure to comply with discovery was sufficiently prejudicial to warrant reversal, the court said:
[T]he crucial nature of the evidence to be supplied * * * is self-evident. Without both witnesses, the state plainly had no case.
That assurance [that a sufficient foundation be laid] was of particular importance here where Scott was not shown by other evidence to have had any...
To continue reading
Request your trial
-
Hernandez v. Dugger
...contributes heavily to the issue of release pending appeal. 5 In Scott v. Jones, 688 F.Supp. 510 (W.D.Mo. 1988), rev'd on other grounds, 862 F.2d 1311, cert. denied, 490 U.S. 1111, 109 S.Ct. 3169, 104 L.Ed.2d 1031 (1989), the issue of release is expressed in terms of seven factors. In this ......
-
Scott v. Jones
...of seven points, double jeopardy. Scott v. Jones, 688 F.Supp. 510 (W.D.Mo.1988). A panel of this court reversed that order. Scott v. Jones, 862 F.2d 1311 (1988), cert. denied, --- U.S. ----, 109 S.Ct. 3169, 104 L.Ed.2d 1031 (1989). Thereafter, the district court denied relief on Scott's rem......