U.S. v. Brooks
| Decision Date | 09 September 1997 |
| Docket Number | Nos. 96-1377,96-1415,s. 96-1377 |
| Citation | 125 F.3d 484 |
| Parties | 47 Fed. R. Evid. Serv. 1072 UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Harold BROOKS and Frederick James Treesh, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Andrew B. Baker, Jr. (argued), Office of the United States Attorney, Dyer, IN, for Plaintiff-Appellee.
Lynn S. Adelman (argued), Jon Deitrich, Adelman, Adelman & Murray, Milwaukee, WI, for Benjamin Harold Brooks.
Martin H. Kinney (argued), Merrillville, IN, for Frederick J. Treesh.
Before RIPPLE, MANION and EVANS, Circuit Judges.
After a three-day jury trial, Benjamin Harold Brooks and Frederick James Treesh were convicted of bank robbery in violation of 18 U.S.C. § 2113(a). The district court then sentenced each one to 300 months of imprisonment, consecutive to any other federal or state sentence, and to 5 years of supervised release. On appeal they challenge a number of the district court's denials of pretrial and trial motions as well as several of its evidentiary rulings during trial. Mr. Brooks also claims that the evidence did not support the verdict and that his counsel's assistance was constitutionally ineffective. Upon review of the record and consideration of the arguments of counsel on each issue, we affirm the judgments of conviction.
When Frederick James Treesh and his girlfriend Keisha Harth were at a drug house in Fort Wayne, Indiana, in June 1994, they ran into a high school friend of Harth's, Benjamin Brooks. The reacquaintance led to an alliance of sorts: First the two men moved into the house of Mr. Treesh's mother in Waterloo, Indiana; then, in July, the threesome--Treesh, Brooks and Harth--left Waterloo and traveled around Indiana, to Fort Wayne, Churubusco and Warsaw, before coming to Hammond at the end of July or early August. As they were traveling in Mr. Treesh's red Ford Ranger pickup truck around the outskirts of Hammond one day in early August (according to Harth's testimony), Mr. Brooks and Mr. Treesh talked about getting some money to buy more drugs. Along the highway was the First Federal Savings Bank of Dyer, Indiana. Mr. Treesh pulled into the parking lot; Mr. Brooks, wearing a dark jacket, took a greenish-gray toy grenade out of the glove compartment, put the grenade inside his jacket and walked to the bank. Harth and Mr. Treesh waited in the pickup.
There were two tellers in the First Federal Savings Bank during the noon hour of August 10, 1994, when a man entered the bank. The bank's video surveillance cameras filmed the actions of the "customer" while he was in the bank. Jennifer Samples, a teller, answered the man's questions about opening a bank account; when he asked about commercial accounts, however, Samples referred him to Dorothy Johnson, the senior teller. Samples then went into the back room. The man thanked Johnson for the information, turned to leave, and then announced it was a robbery. He opened his coat, which Johnson described as dark blue, and showed a weapon. Johnson, who had been the victim of two previous robberies in which guns were pointed at her, concluded that it was a pistol, although she was unable to see a handle or a trigger. She did as he demanded; she removed the money from her drawer and from Samples' drawer and put it on the counter. The robber then told Johnson that he left his prints all over the counter. Samples returned from the back room as the man was walking sideways to the door, warning them not to hit the alarm. When he got to the door, Johnson hit the alarm and Samples called the police. Samples identified Mr. Brooks in court as the man in the bank.
Mr. Brooks left the bank and got into Mr. Treesh's waiting truck. Keisha Harth testified that, as Mr. Treesh drove away, Mr. Brooks counted the money while he hid on the floor of the truck under Harth's legs; he reported that he got about $1,000. 2 According to Harth, Mr. Brooks told them that he had been talking to two ladies in the bank about opening an account. Harth also testified that they bought drugs after the robbery.
The Dyer police and FBI Agent Grist both responded to the bank's call and investigated the robbery. Each teller separately described the robber in similar detail (a 5'6"-8" white male, 3035 years of age, thin build, short dark hair, dark glasses, blue jeans, blue or navy jacket with a gold seal reading "U.S. Omni"). Johnson added that the man had a dirty complexion and wore gym shoes. Samples also described the robber as having bent ear tips and a circular-shaped tattoo on his right hand between the thumb and index finger. Mr. Brooks is a white male about 5 feet 8 inches tall, about 150 pounds, with dark brown hair and a tattoo on his right hand between his thumb and index finger. However, none of the latent fingerprints taken from the bank counter, door, or brochures matched Mr. Brooks' prints, and no arrests were made in the weeks following the robbery.
Several weeks later, however, Mr. Brooks and Mr. Treesh were arrested in Ohio. They were caught by local police on the evening of August 27, 1994, minutes after they robbed a video store in East Lake, Ohio. 3 The police found Mr. Brooks hiding in the back of the car he had driven away from the crime scene. After holding him at the scene for half an hour or more, the police transported Mr. Brooks to a hospital for treatment of his injured hand. When Mr. Brooks was taken to the local police station, he was held in the squad car for half an hour while witness interviews were being conducted in the station. Once he was brought into the station, he was moved from a holding cell to different interview rooms as the police recorded his booking information.
At around 5:45 a.m., FBI Agent Buck and another special agent came to question Mr. Brooks concerning other incidents, such as the transportation of stolen cars and bank robberies. Agent Buck testified that Mr. Brooks was alert and coherent and that he agreed to talk. Mr. Brooks also signed the Miranda waiver form: Agent Buck first read it to him, and then Mr. Brooks read it and stated that he understood the form; at that point he signed it. Mr. Brooks then gave a statement. The interview continued for two hours; when Mr. Brooks asked to end the interview because he was tired, it was terminated.
According to Agent Buck, during the interview, Mr. Brooks told the agent that he had met Harth and another individual in a drug house in Fort Wayne, that they had traveled throughout Indiana in a red pickup truck and that they stopped at a bank in northwest Indiana, in a place called Sharonville or Sharon-something. Mr. Brooks also stated that he got out of the truck, went into the bank, approached a teller and, after engaging in small talk with her, produced a simulated grenade. Mr. Brooks reported to the agent that he told the woman to put the money on the counter; he said he picked up the money, left the bank and got into the vehicle with the other individual and Harth. According to Mr. Brooks, he got $1,200-1,300 in the robbery; they went to Chicago afterwards.
In September FBI Agent Grist showed the bank tellers, Johnson and Samples, a photo spread which included a photograph of Mr. Brooks taken in November 1993, when the suspect had long hair covering his ears and a full moustache. Neither teller made an identification. In November, the agent returned with another photo spread; this one included a later photograph of Mr. Brooks, taken August 1994, with short hair, visible ears and a one-to-two-day stubble. Samples, who had dealt with the robber almost 5 of the 6 1/2 minutes that the robber was in the bank, immediately identified Mr. Brooks as the robber. Johnson, who had been with the robber about 40 seconds, picked a photograph of another subject.
Messrs. Brooks and Treesh were indicted on a single bank robbery count, and each pleaded not guilty. Trial began October 24, 1995; on October 27, the jury found both men guilty as charged. They now appeal.
Mr. Brooks asserts on appeal, as he did before the district court, that his statement concerning the Dyer robbery should be suppressed because he did not validly waive his Miranda rights before speaking to the FBI agents and because he did not speak voluntarily to the agents. At the suppression hearing, Mr. Brooks testified that he had been under the influence of crack cocaine or its aftereffects at that time; in fact, he submits, he "had been smoking a steady supply" of crack cocaine for about two months, and had not slept in the four days prior to robbing the Ohio video store. Tr. at 217-18. Mr. Brooks also testified that, at the time of his arrest, he was forced to lie in the street 30-45 minutes before being taken to a local hospital for treatment of his hand. 4 At the hospital, he was given a local anaesthetic so that his hand could be stitched. At the police station, he was moved back and forth from holding cell to interview room to be booked, finger-printed, photographed and questioned. For this reason, he testified, he was unable to sleep before the FBI agents came at 5:45 a.m., about six hours after his arrest. Because of this lack of sleep and the aftereffects of the crack cocaine he had taken shortly before the video store robbery, after two hours with the agents Mr. Brooks claimed he "was no longer coherent" and asked to stop the interview. Tr. at 221. In fact, he stated, his head did not clear until the next day. Consequently, he contends, neither the waiver of his Miranda rights nor his statement to the FBI implicating himself in various crimes can be considered voluntary. In addition, he asserts, his waiver was not knowingly and intelligently made.
In its consideration of Mr. Brooks' motion to suppress, the district court compared Mr. Brooks' testimony with that of the FBI agent who interviewed Mr....
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