U.S. v. Barrett

• Decision Date: 07 June 1983
• Docket Number: No. 81-1622,81-1622
• Parties: 13 Fed. R. Evid. Serv. 276 UNITED STATES of America, Plaintiff-Appellee, v. Edwin Thomas BARRETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1076

703 F.2d 1076

13 Fed. R. Evid. Serv. 276

UNITED STATES of America, Plaintiff-Appellee, v. Edwin Thomas BARRETT, Defendant-Appellant.

No. 81-1622.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted June 7, 1982.

Decided April 11, 1983.

As Amended on Denial of Rehearing June 7, 1983.

Stephen R. Sady, Portland, Or., for defendant-appellant.

William W. Youngman, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before CHOY, TANG and BOOCHEVER, Circuit Judges.

CHOY, Circuit Judge:

Edwin Barrett appeals from his conviction, after trial by jury, for robbing a federally insured savings and loan association, in violation of 18 U.S.C. Sec. 2113(a). He contends that the trial court erred in (1) denying his motion for a continuance that was needed to enable his counsel to prepare for cross-examination and rebuttal of the Government's photographic expert; (2) refusing to substitute an alternate juror for, or allow defense counsel to question, a juror who claimed to have been sleeping during the trial; and (3) admitting certain testimony of Government witnesses that should have been excluded. Because we find error in the trial court's handling of the "sleeping"-juror question, we remand for a hearing on this issue.

I. Facts

On June 5, 1981, at about 3:25 p.m., a lone robber entered the Uptown Branch of Western Savings and Loan in Portland, Oregon. The robber approached Lydia Bass, a teller, showed her a gun, and demanded money. Bass gave the robber approximately $410 and two clips of bait bills--one containing a dye pack and the other activating the bank surveillance cameras.

On June 9, 1981, a Federal Bureau of Investigation agent and a Portland police officer went to Barrett's residence and confronted Barrett with a surveillance photograph taken during the June 5th robbery. Barrett accompanied the officers to the Portland office of the FBI where he was questioned by Special Agent Stanley Renning, released, then arrested two and a half hours later.

At trial, the major issue was one of identification. The Government introduced four 8- by 10-inch surveillance photographs of the robber and two smaller photographs of Barrett as he appeared before he shaved his beard and mustache. All the witnesses who testified at trial were for the Government. Bass, the teller, testified that she had previously selected Barrett's photograph as that of the robber in a pretrial photographic spread, although she had not been certain of the identification. She also identified a gun and clothing seized from Barrett as resembling those used by the robber, and made a positive in-court identification of Barrett.

Barbara Lemon, Barrett's live-in girl friend, testified that the person in the surveillance photograph was Barrett. She also testified that the clothes seized ¹ by the FBI were worn by Barrett on June 5th, the day of the robbery; that the gun seized ² by the FBI was a starting pistol that belonged to her; that Barrett left home at 7:00 a.m. on the day of the robbery, claiming that he was going to work for Hoffman Construction Company, ³ and did not return until 4:00 p.m.; that when he returned at 4:00 p.m., Barrett gave her $230 in cash to pay a telephone bill; that later that same day he shaved off his beard and mustache; and that he took her to dinner that night and paid the bill, something he usually did not have money to do.

Special Agent Stanley Renning of the FBI testified regarding statements Barrett had made while being questioned on June 9th about the robbery. Agent Renning testified that Barrett said that he spent the major portion of the afternoon at home preparing for a fishing trip on the day of the robbery, and that he shaved off his beard and mustache on June 4th, the day before the robbery.

Finally, Peter Smerick, an FBI photographic expert, testified that he compared the clothing of Barrett seized by the FBI with that worn by the robber in the bank surveillance photograph by use of a microscope and high-intensity light. ⁴ Smerick testified to detailed similarities between Barrett's clothing seized by the FBI and that worn by the robber in the surveillance photograph, including the color and placement of buttons on the sweater, the stripes and placement of buttons on the shirt, and the stains found on the cap.

II. Discussion

A. Denial of Barrett's Motions for Continuance

Barrett contends that in view of the Government's last-minute production of a photographic expert witness, the trial court should have granted a continuance to enable his counsel to prepare for cross-examination and rebuttal of that expert. The Government first notified Barrett of its intention to call a photographic expert as a witness on July 28, 1981, eight days before trial. Barrett had earlier moved for a continuance because of his counsel's involvement in other trials. On July 31, 1981, Barrett supplemented this motion by submitting an affidavit by his counsel stating that a continuance was necessary in order for Barrett to prepare for the expert and possibly obtain a defense expert.

On August 3, 1981, two days before trial, the Government provided Barrett with the results of the expert's report. Although the record indicates that Barrett made a diligent effort to secure an expert to assist him before trial, he was unsuccessful. Barrett made numerous motions for continuance before and during trial which were all denied.

Barrett relies principally on the Second Circuit decision of United States v. Kelly, 420 F.2d 26 (2d Cir.1969), to support his argument that the trial court's failure to grant a continuance constitutes reversible error. The defendants in Kelly were two police officers who were charged with retaining and selling cocaine that they had seized in an earlier raid. At trial, the Government introduced the results of neutron-activation tests which tended to show that the cocaine sold by the defendant police officers came from the same batch seized in the earlier raid. The Government, in violation of a discovery order, had not informed the defendants of the tests, and the defendants first learned of the test results when they were introduced at trial. The defendants' motion for a continuance to carry out its own version of the tests was denied and the defendants were subsequently convicted.

In reversing the defendants' convictions, the Second Circuit held that "fairness requires that adequate notice be given the defense to check the findings and conclusions of the government's experts." Id. at 29. The court ordered a new trial to give the defendants a fair opportunity to run their own neutron-activation tests. Id.

We conclude that the rule announced in Kelly applies to the present case. Thus, the question becomes whether Barrett was given adequate time to obtain an expert to assist him in attacking the findings of the Government's photographic expert. Under the circumstances of this case, we find that Barrett was not given adequate time to obtain an expert to assist him in attacking the Government's expert.

Barrett was first notified of the Government's intent to call a photographic expert eight days before trial. He received the results of the expert's tests only two days before trial. The record indicates that Barrett probably could have obtained an expert to assist him had he been given more time.

The denial of a continuance is within the trial court's discretion and should not be disturbed on appeal absent clear abuse. United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir.1978). In failing to grant the requested continuance to allow Barrett adequate time to obtain the assistance of an expert, the trial court clearly abused its discretion. Cf. United States v. Durant, 545 F.2d 823, 827-28 (2d Cir.1976) (failure to grant indigent defendant's request for fingerprint expert violates Criminal Justice Act); Barnard v. Henderson, 514 F.2d 744, 746 (5th Cir.1975) (defendant has right to have own ballistics expert examine evidence).

Our finding of error does not end our inquiry. We must also determine whether the error amounts to one requiring reversal of Barrett's conviction. In this context, it is important to note that our finding of error is based on our determination that Barrett should have been given additional time to secure a defense expert for the limited purpose of assisting him in attacking the credibility of the Government's expert through cross-examination and rebuttal. It is not based on a determination that Barrett was entitled to additional time to secure a defense expert witness to provide affirmative proof of his innocence by showing that his seized clothes and the clothes worn by the robber in the surveillance photograph were different. Barrett received general discovery in the case three weeks before trial; it was only notification of the Government's intention to call a photographic expert and the results of the expert's tests that were received late. If Barrett had desired a photographic expert to provide affirmative proof of his innocence, he had ample time to secure one. The prejudice resulting to Barrett from the denial of the continuance is thus limited to his difficulty in attacking the credibility of the Government's witness without the aid of an expert. ⁵

This prejudice could have been eliminated by excluding the testimony of the Government's expert witness. Therefore, the denial of the continuance would be harmless error if the improper admission of the testimony of the Government's expert under the facts of this case would be deemed harmless.

An error is considered harmless and shall be disregarded on review if it does not affect substantial rights of the defendant. Fed.R.Crim.P. 52(a). ⁶ This circuit has formulated a test requiring the determination of whether the prejudice resulting from the error was more probably than not harmless. United States v. Castillo, 615 F.2d 878, 883 (...