U.S. v. Crouthers, 80-2091

• Decision Date: 22 January 1982
• Docket Number: No. 80-2091,80-2091
• Citation: 669 F.2d 635
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: 9 Fed. R. Evid. Serv. 1484 UNITED STATES of America, Plaintiff-Appellee, v. Gregory CROUTHERS, Defendant-Appellant.

Page 635

669 F.2d 635

9 Fed. R. Evid. Serv. 1484

UNITED STATES of America, Plaintiff-Appellee, v. Gregory CROUTHERS, Defendant-Appellant.

No. 80-2091.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Nov. 19, 1981.

Decided Jan. 22, 1982.

Jerome C. Ramsey, Asst. U. S. Atty., Denver, Colo. (Joseph Dolan, U. S. Atty. and Robert Gay Guthrie, Asst. U. S. Atty., Denver, Colo., with him on the brief), for plaintiff-appellee.

Richard B. Deutsch, Denver, Colo., for defendant-appellant.

Before BARRETT, DOYLE and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

Crouthers was convicted of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d) and 2.

On appeal Crouthers contends that (1) the evidence was insufficient to show that Salski was assaulted or his life put in jeopardy and the robbery was accomplished by the use of a dangerous weapon; (2) the trial court erred in instructing the jury; (3) the trial court erred in denying his motions for mistrial; (4) the trial court did not make a sufficient determination as to the voluntariness of Mrs. Crouthers' testimony and improperly limited cross-examination of Mrs. Crouthers; and (5) he was denied effective assistance of counsel.

On May 12, 1980, Crouthers and a companion, Robert Salski, were approached by a man, later identified as Garvin Trimm, as they were leaving Crouthers' apartment to go to dinner. Crouthers told Salski that Trimm had a gun in Crouthers' back. Salski did not know at that time that Crouthers and Trimm were acquaintances and that they had planned the developing scenario. Trimm ordered the men into Salski's car and told Salski to drive to the Regatta Shopping Center in Aurora, Colorado. Trimm threatened the two men by telling them to cooperate and nobody would get hurt. At the shopping center, Trimm directed Salski to the Aurora National Bank automatic teller facility. Salski was a Wells Fargo employee and, as such, had keys to the banking facility. Acting on Trimm's orders, Salski unlocked the safes in the facility and placed $13,650.00 of bank funds in a briefcase. Trimm then ordered the men back into the car. They returned to the area of Crouthers' apartment where Trimm took his leave. Salski contacted the Wells Fargo office and then returned to the automatic teller facility. The FBI was contacted. After FBI agents interviewed both Salski and Crouthers, Crouthers' apartment was searched with his consent. Nothing connecting Crouthers with the robbery was found at that time.

The next day Crouthers, his wife Terry, and Trimm flew from Denver to Chicago. Trimm went on to Indiana. The Croutherses continued on to New York. When they returned from New York, Terry Crouthers contacted the FBI and informed that she suspected her husband may have been involved in the bank robbery. Although Mrs. Crouthers had been separated from her husband for a few weeks and was, at that time, living with her parents, she had a key to the apartment. The FBI conducted another search of the apartment with the consent of Terry Crouthers. This search revealed evidence connecting Crouthers with the robbery.

Eventually Trimm was arrested for the bank robbery. Prior to his arrest he gave false statements to the FBI exculpating himself from any involvement in the robbery. Subsequently, a plea agreement was entered into whereby Trimm was charged with a lesser offense in exchange for his promise to testify against Crouthers. Trimm's testimony at trial revealed that on May 9, 1980, three days prior to the robbery, Crouthers, Trimm's former teacher and friend, asked him to come to his apartment. At the apartment, Crouthers told Trimm that he planned to rob a bank and that Trimm was going to help him. According to Trimm's testimony, Crouthers was the mastermind behind the whole plan. Crouthers set up the meeting with Salski, who Crouthers knew from his previous work at Wells Fargo. On the night of the robbery, Crouthers supplied Trimm with the briefcase for the money and with a loaded gun. Trimm testified that Crouthers instructed him to keep the gun pointed at Crouthers at all times. Crouthers did not know that Trimm removed the bullets from the gun prior to the robbery. After the robbery, Trimm left some of the money in a camera case on the bed in Crouthers' apartment. However, the first search of the apartment by the FBI on the night of the robbery failed to uncover the money. Trimm testified that he put the rest of the money in a speaker box which was recovered in the second search of Crouthers' apartment.

During the course of the trial it became apparent that defense counsel had not been provided with a statement made by Crouthers to the FBI. Defense counsel moved for a mistrial. The court ruled that the FBI agent who had taken the statement would not be allowed to testify and no mention of the statement was to be made. Subsequently, it was discovered that defense counsel had not been supplied with a statement made by Trimm to the FBI. Defense counsel was then supplied with a copy of the Trimm statement and given a few minutes to read it. Once again, defense counsel moved for a mistrial. The court denied the motion but ruled that the prosecution could not use the Trimm statement.

I.

Crouthers contends that because Salski did not see the gun and because the gun was unloaded, the evidence was insufficient to show that Salski was assaulted or his life put in jeopardy. Furthermore, he contends that the evidence was insufficient to show that the robbery was accomplished by the use of a deadly weapon.

This court has rejected the objective test on these elements of armed robbery. Instead, we are guided in our review by the "reasonable man" standard as set out in United States v. Beasley, 438 F.2d 1279 (6th Cir. 1971), cert. denied, 404 U.S. 866, 92 S.Ct. 124, 30 L.Ed.2d 1101 (1971), reh. denied, 404 U.S. 960, 92 S.Ct. 310, 30 L.Ed.2d 278, 404 U.S. 1006, 92 S.Ct. 566, 30 L.Ed.2d 559 (1971), quoted with approval in United States v. Shannahan, 605 F.2d 539 (10th Cir. 1979). Under the Beasley test the evidence must establish that the defendant,

... created an apparently dangerous situation, (b) intended to intimidate his victim to a degree greater than the mere use of language, (c) which does, in fact, place his victim in reasonable expectation of death or serious bodily injury.

438 F.2d at 1282.

In applying this test, we must view the evidence as it appeared to Salski at the time of the crime and not through hindsight. The evidence established that at the time of Salski's encounter with Trimm the lighting conditions were poor (R., Vol. III at p. 142), that Crouthers told him that he thought "the guy" had a gun on him, and that Salski thought Crouthers was kidding until Crouthers repeated the remark about the guy having a gun (R., Vol. III at p. 137). Trimm told Salski, "Just take it easy and your friend here won't get hurt." (R., Vol. III at p. 138). While the men were in the car driving to the shopping center, Salski heard Crouthers say, "don't shoot, don't hurt us" (R., Vol. III at p. 143). Salski testified that he was afraid for Crouthers; that he felt indirectly threatened because he didn't know what the gunman was going to do; and he thought that the gunman might shoot or kidnap them. (R., Vol. III at pp. 161, 170).

This testimony evidences that Salski perceived a dangerous situation, that he felt intimidated due to the belief that the perpetrator may have had a gun, and that he did have an expectation of death or serious injury. The inquiry, resolved by the jury, involved the reasonableness of Salski's beliefs. It would be unreasonable to expect the victim of a crime, such as Salski, to risk his life in order to positively ensure that his assailant did indeed have a weapon and that the weapon was loaded. Thus we hold that the evidence was sufficient to establish that Salski's life was in jeopardy. In like manner, we hold that the evidence was sufficient to establish that a dangerous weapon was used to effect the crime.

The inquiry is whether Salski perceived the situation as involving a dangerous weapon and, if so, whether the perception was reasonable. In light of the testimony concerning comments made by both Crouthers and Trimm, it is apparent that Salski reasonably perceived the use of a dangerous weapon. In Baker v. United States, 412 F.2d 1069 (5th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970), the court said,

A gun is commonly known, regarded and treated by society as a dangerous device by both the reasonable man and the person at whom it is pointed, without pause to determine whether a round is in the chamber. ... We hold that a gun used in connection with and at the scene of a bank robbery is as a matter of law a dangerous weapon and those on the immediate scene of the robbery are placed in an objective state of danger regardless of whether there is proof that the gun was loaded.

412 F.2d at 1071-72. See also: United States v. Marx, 485 F.2d 1179 (10th Cir. 1973), cert. denied, 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974) (fake bombs constituted dangerous weapon); United States v. Cooper, 462 F.2d 1343 (5th Cir. 1972), cert. denied, 409 U.S. 1009, 93 S.Ct. 452, 34 L.Ed.2d 303 (1972) (simulated bomb is dangerous weapon); United States v. Beasley, supra.

Accordingly, we hold that Crouthers' contention that the evidence was insufficient to support his conviction is without merit.

II.

Crouthers assigns error to the trial court's instructions to the jury. He first claims the court erred in refusing to give a lesser included offense instruction on simple robbery. Whether or not a lesser included offense instruction is appropriate depends on the evidence, and the trial court is in a unique position to determine whether or not the instruction should be given. Thus, the trial court's determination will not be disturbed on appeal in the absence of an abuse of discretion. United States v. Chapman, 615 F.2d...