Tucker v. United States

• Decision Date: 19 May 1969
• Docket Number: No. 24229-24231.,24229-24231.
• Citation: 409 F.2d 1291
• Parties: Homer Lee TUCKER, John David Woodall, and Jerre D. Weir, Appellants, v. UNITED STATES of America, Appellee. Homer Lee TUCKER and John David Woodall, Appellants, v. UNITED STATES of America, Appellee. Homer Lee TUCKER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

409 F.2d 1291 (1969)

Homer Lee TUCKER, John David Woodall, and Jerre D. Weir, Appellants, v. UNITED STATES of America, Appellee.

Homer Lee TUCKER and John David Woodall, Appellants, v. UNITED STATES of America, Appellee.

Homer Lee TUCKER, Appellant, v. UNITED STATES of America, Appellee.

Nos. 24229-24231.

United States Court of Appeals Fifth Circuit.

April 29, 1969.

Rehearing Denied May 19, 1969.

John P. Farra, Clyde W. Woody, Marion S. Rosen, Houston, Tex., for appellant Woodall.

Edward Billingsley, Birmingham, Ala., for appellant Tucker.

Joel N. Lee, Miami Beach, Fla., for appellant Weir.

R. Macey Taylor, Asst. U. S. Atty., Birmingham, Ala., for appellee.

Before JOHN R. BROWN, Chief Judge, WISDOM, Circuit Judge, and BREWSTER, District Judge.

Rehearing Denied in No. 24229 May 19, 1969.

BREWSTER, District Judge:

Jerre Donovan Weir, Homer Lee Tucker, John David Woodall and wife, Carol Joyce Woodall, were jointly indicted for robbery of the federally insured Green Valley Branch of the First National Bank of Birmingham, Alabama, on June 3, 1965, by putting the life of one of its money custodians in jeopardy through the use of a pistol.

Each of the defendants pled not guilty at the time of arraignment in September, 1965. Both the Woodalls changed their pleas to guilty when the case was called for trial on February 21, 1966. Tucker and Weir went to trial before a jury. Tucker changed his plea to guilty in the absence of the jury after he had heard enough of the evidence to know that the government could prove his guilt beyond question. A severance was granted him, and the trial of Weir proceeded. The jury found him guilty.

Woodall was under two other indictments alleging robberies of federally insured institutions in or near Birmingham, under circumstances making the aggravated penalty under 18 U.S.C.A. § 2113(d) applicable. One of those indictments charged Woodall and Tucker with robbery of this same Green Valley Branch bank on April 29, 1965. Woodall also pled guilty to that robbery on February 21, 1966. The other case against Woodall was "passed generally."

Tucker had a total of six federal indictments pending against him when he changed his plea to guilty during the trial begun on February 21, 1966. One of them charged a Dyer Act violation; and each one of the others alleged a robbery of a federally insured institution, either a bank or a savings and loan association, by putting the life of the money custodian in jeopardy with a pistol. In the days intervening between his plea in the first case and the sentence hearing, Tucker secured the transfer of his three federal cases in Texas to the court in Birmingham for plea and sentence under Rule 20, F.R.Crim.P. On March 2, 1966, he was convicted and sentenced on his pleas of guilty in each one of his six cases.

Weir, Tucker and Woodall appealed. Mrs. Woodall did not. No question raised is common to any two appellants, but the matters urged by each of them are relevant to all of his convictions. For reasons that will be apparent, all of the appeals can best be disposed of in this one opinion.

Tucker, Weir and the Woodalls, all residents of Fort Worth, Texas, were good friends. While the case growing out of the bank robbery on June 3, 1965, was the only one in which all of them were jointly charged, Tucker and Woodall were named as co-defendants in the armed robberies on April 29, 1965, of this same bank and of a savings and loan association in Birmingham. Only Tucker was charged in the Dyer Act case and in the robberies of the two savings and loan associations in Fort Worth in October, 1964.

On June 1, 1965, Tucker, Weir and the Woodalls traveled from Fort Worth to Birmingham in two cars. The one the Woodalls were using was a canary yellow 1965 Chevrolet Impala Sport Coupe bearing white Texas license plates. Upon their arrival in Birmingham, Tucker got two rooms at the Travelodge Motel for occupancy by four people. The motel was a considerable distance from the bank they were going to rob; and on the following day, the Woodalls got one room at the Holiday Inn south of town, which put them only about half a mile from the bank.

Their plan contemplated that the two who engaged in the actual robbery of the bank would use a stolen car in the arrival at and the departure from the bank, so that it could be abandoned quickly and would not be traced to any members of the party. Tucker and Weir were to commit the actual robbery, and the Woodalls were to rendezvous with them and take them and the loot in the Chevrolet to the room in the Holiday Inn nearby. In that way, they had a good chance to be off the streets before police patrol cars got a radio broadcast on the robbery. Even in case they did not get to the hideout that soon, officers would not be looking for a yellow Chevrolet occupied by three men and a woman.

Some time on June 2d, Tucker and Weir stole a white 1964 Ford bearing Florida license plates parked on the downtown streets of Birmingham. About noon on June 3d, they went to the bank in the stolen Ford and parked it nearby. Tucker told the officer in charge, "We want it all this time." Tucker went behind the teller cages, while Weir remained in front of them. They made the male bank officer and a female teller take over seven thousand dollars from two of the cages and put it into a pillow slip Tucker had. The man and woman were then made to lie face downward on the floor as Tucker and Weir left, and told not to report the robbery immediately. All of this was at gun point.

Tucker and Weir got into the stolen Ford, swerved around and left the parking area at the bank at a high rate of speed. They went to the rendezvous at the graveled side road or cut-off on the Old Columbiana Road, where they abandoned the Ford, got in the waiting yellow Chevrolet with the Woodalls, and went to the Holiday Inn.

The robbery might have gone unsolved except for a happenstance that connected the yellow Chevrolet with the white Ford seen at the bank, and for the fact that the unusual color of the Chevrolet made it easy to locate during a check at the motels.

Around noon on the day of the robbery, Mr. Schopf, the Territory Manager of White Motor Co. in Birmingham, had taken his family to the shopping center where the bank was located. As he was driving into the parking area, he saw a white 1964 Ford containing two men suddenly swerve around from the vicinity of the bank and leave the area at an excessive rate of speed. A little later, he saw a crowd around the bank and went to find out what had happened. While he was there, he told the police officers what he had observed about the white Ford. The officer replied that it was linked with the robbery, and had already been found abandoned at the cut-off on the Old Columbiana Road. Schopf then informed the officers that he had come by the cut-off around noon on his way from home to the shopping center, and had noticed a yellow 1965 Chevrolet Impala Sport Coupe, bearing white Texas license plates and containing a man and a woman, parked there.

The motel check led to the location of the yellow Chevrolet at the Holiday Inn at about 2:00 P.M., and the officers canvassed some of the people at the motel for information about the car. One of the guests was a woman who had been sunbathing by the swimming pool since before the Chevrolet drove in late in the noon hour. She had seen the three men and a woman get out of the car and go to room 122, and the woman return later for the men's coats and a canvas satchel. An investigation...