U.S. v. Byrd, No. 04-12188 Non-Argument Calendar.

• Decision Date: 25 March 2005
• Docket Number: No. 04-12188 Non-Argument Calendar.
• Citation: 403 F.3d 1278
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jamie Edward BYRD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

403 F.3d 1278

UNITED STATES of America, Plaintiff-Appellee, v. Jamie Edward BYRD, Defendant-Appellant.

No. 04-12188 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

March 25, 2005.

COPYRIGHT MATERIAL OMITTED

David F. Sipple (Court-Appointed), Hunter, Maclean, Exley & Dunn, PC, Savannah, GA, for Defendant-Appellant.

Amy Lee Copeland, Robert M. Brennan, Savannah, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:

Jamie Byrd was convicted of armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d); the use of a firearm during the commission of a bank robbery, in violation of 18 U.S.C. § 924(c); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). Byrd appeals his convictions on all three counts, contending that the district court abused its discretion in refusing to reopen the evidence in order to allow him to testify. Byrd also appeals his conviction on the first two counts by asserting that the evidence at trial was insufficient to sustain his conviction or, in the alternative, that the conviction was against the weight of the evidence.

I.

Shortly after 9:00 a.m. on November 10, 2003, an armed individual robbed the National Bank of Commerce in Savannah, Georgia. The robber entered the bank carrying a black revolver with a long barrel and a wooden handle. He ordered, "Nobody move," and walked to a teller's station. He banged his gun on the counter and instructed two tellers to put money on the counter. The robber stuffed the money into his sweatshirt pockets, dropping some of it as he fled. The bank manager calculated that the robber left the bank with $4,680.

There were nine eyewitnesses to the crime. Those witnesses, who were either bank employees or customers, described the robber as an African-American male, between 5'2" and 5'9", and between 145 and 150 pounds. One witness estimated that the robber was either in his late teens or early twenties. The witnesses consistently described the robber as wearing a dark-colored, hooded sweatshirt; dark blue jeans; a mask with eye holes; and white gloves, which may have been latex.

As the man fled the bank, he was observed by Greg Waters, who was looking out of his office window about 150 feet from the bank. Waters watched the man run into a cluster of trees and cut through some bushes. Because the bank had been robbed before, Waters considered a man running from the bank to be highly suspicious. Waters left his office, got into his car, and drove over to see where the man was going. As Waters was driving toward the trees where he had seen the man, a car pulled out. Waters described the car as brown or gold in color and stated that it was probably a Cutlass or a similar model from the early 1980s.

Waters followed the car thinking that it was driven by the man he had seen running from the bank. Waters called 911 on his cell phone and told the dispatcher that the car's tag number was 7821 AWA. After he had given the tag number to the 911 dispatcher, Waters decided there was no further point to following the car. He went back to the bank where he met with Special Agent Freddie Watkins of the FBI. Waters told Watkins what he had observed, and together they retraced the route taken by the man Waters had seen running from the bank. Along that route, they found a $5 bill and a latex glove, which Watkins collected. After Waters had gone, Watkins retraced the route again and found a $10 bill, which he also collected.

Tag number 7821 AWA corresponds to a 1980 gold Buick Century registered to Jamie Byrd at 21 Pritchard Street in Savannah, Georgia. Within thirty minutes of the robbery, Sergeant Ernst of the local police department arrived at 21 Pritchard Street and observed a gold car with that tag number parked in the yard. Ernst reached underneath the bumper and felt the radiator, finding it to be hot; he surmised that the vehicle had been driven recently. Ernst looked through the car's windows and saw "a large frame black revolver with wood grips partially sticking out from underneath the front seat." The gun was later determined to be a .357 revolver loaded with six rounds of hollow point bullets.

While waiting for backup, Sergeant Ernst watched the house. As he did so, a man and woman stepped outside. The man was Byrd, and the woman was Byrd's great-grandmother, Lula Mae McNeil. Byrd is an African-American man who is 5'6" tall and weighs 140 pounds. At the time of the robbery, Byrd was twenty-three years old. McNeil is a home-health provider who keeps latex gloves in her house.

More officers arrived at 21 Pritchard Street. McNeil, who owns the house, gave the officers permission to search. In Byrd's bedroom closet, an FBI agent found a blue-colored, hooded sweatshirt; a mask with two eye holes; and a pair of blue jeans. Another FBI agent found an unlocked, black metal box under Byrd's bed. It contained $4,650 in various denominations. The FBI agent observed that there "were certain amounts that were consecutive in a row." The officers arrested Byrd.

Byrd proceeded to trial. After the government had rested its case, the court asked defense counsel whether Byrd would testify, and counsel replied that Byrd would not. The court then asked defense counsel: "Have you given an understanding to Mr. Byrd that he may testify? That's his own choice and no one can deprive him of that right." Defense counsel answered that he had. The court then inquired: "You understand that, Mr. Byrd." Byrd replied, "Yes, your honor."

Byrd then put on several witnesses. McNeil testified that, on the morning of the November 10 robbery, Byrd had gone outside to fix his car. In order to do so, he had driven the car from the upper part of the yard to the back of the house. She testified that he stayed outside for only twenty-five minutes while she sat inside and watched him. Lester Mae Byrd, Byrd's mother, testified that Byrd had purchased auto parts on November 9 and that he had called her on November 10 at 9:30 a.m., the approximate time of the robbery. She also stated that Byrd was in the habit of keeping his money in a little, black chest under his bed instead of in a bank. Various witnesses testified that Byrd had received $5,425.18 from legitimate sources in the first ten months of 2003.

An FBI examiner testified that he had been able to remove "an impression" from the latex glove the FBI found. The impression did not match Byrd's fingerprint or palm print. Vickie Tubbs, a representative of the Motor Vehicle Administration for the Chatham County Tax Commissioner's Office Tag Department, also testified for the defense. She testified that there were one hundred tags issued in Chatham County that began with 78 and ended with AWA. On cross-examination, she acknowledged that the only tag issued with the sequence 7821 AWA was assigned to Byrd's 1980 Buick.

After the defense rested, Sergeant Ernst testified again, as a rebuttal witness. He testified that when he had arrived at McNeil's home on the morning of November 10, McNeil had told him that Byrd "had gotten home just before we, the police, showed up." Ernst also said that, when he had spoken to Lester Mae Byrd on the phone about the robbery, she had not mentioned that she had talked to her son around the time of the robbery. Byrd's mother had told Ernst that, on the morning of the 10th, Byrd had asked to borrow her truck but she had refused, stating she had "had a real bad feeling about it."

The evidence closed after the government put on its rebuttal witness, and the court was inclined to proceed with closing arguments. On defense counsel's request, however, the court agreed to recess for the day and begin closing arguments in the morning.

The next morning, defense counsel informed the court that Byrd had changed his mind and wanted to testify. The court responded, "We closed the evidence yesterday. And all the other witnesses were released. So, any rebuttal that the government would need is gone." The court denied Byrd's request to reopen the evidence stating, "It would be untenable to [the government], with all their witnesses released, for him to then say whatever he wants to without much fear of anybody being around to rebut it." The court sent the case to the jury, which convicted Byrd on all counts. This appeal ensued.

II.

A criminal defendant has the right to testify on his own behalf. Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 2708, 97 L.Ed.2d 37 (1987). Yet, this right "is not without limitation"; it must sometimes "bow to accommodate other legitimate interests in the criminal trial process." Id. at 55, 107 S.Ct. at 2711 (internal marks and citations omitted). When considering rules that limit a defendant's right to testify, we "must evaluate whether the interests served by a rule justify the limitation imposed on the defendant's constitutional right to testify." Id. at 56, 107 S.Ct. at 2711. We note at the outset that Byrd was not denied his right to testify in his own behalf; he made a knowing and voluntary waiver of that right before the district court.

The decision whether to reopen a case to introduce additional evidence is reviewed only for abuse of discretion. United States v. Cohen, 888 F.2d 770, 775 (11th Cir.1989). This Court has never reviewed a case involving the district court's refusal to reopen the evidence in order to allow a criminal defendant to testify. We now join the First and Eighth Circuits in holding that an accused's right to testify generally must be exercised at the appropriate time, which is before the evidence-taking portion of the trial has closed. See United States v. Peterson, 233 F.3d 101, 105-07 (1st Cir.2000); United States v. Jones, 880 F.2d 55, 59-60 (8th Cir.1989). Though the district court may reopen the evidence in order to allow a defendant to testify, its failure to do so usually will...